First Amendment Protects Silent Defiance Towards Pledge
July 29, 2004
The Eleventh Circuit recently addressed the issue of a student’s First Amendment protections in the context of the Pledge of Allegiance and silent prayer. Holloman v. Harland, 2004 WL 1178465 (11th Cir. May 28, 2004). The Holloman court held that the First Amendment protects a student’s right to raise his fist in silent protest during the Pledge of Allegiance. The court also held that a teacher’s daily ritual of conducting silent moments of prayer violated the Establishment Clause.
Holloman, a former Alabama public high school student filed a Section 1983 action against his teacher, school principal and county board of education claiming that his rights under the First Amendment’s Speech Clause were violated when the teacher and principal punished him for silently raising his fist during the daily flag salute instead of reciting the Pledge of Allegiance. The student also claimed that the teacher’s practice of soliciting prayer requests and holding a moment of silent prayer violated the Establishment Clause.
The Eleventh Circuit reversed the grant of summary judgment to the teacher and principal based upon the defense of qualified immunity. This defense is available to government employees to allow them a degree of protection when exercising powers to legitimately perform a part of their jobs. The court determined that, although Holloman’s teacher and principal were exercising discretionary functions when they disciplined him for refusing to recite the Pledge of Allegiance, they violated the student’s clearly established constitutional right to be free from compelled speech. Holloman’s teacher violated this freedom when she instructed the class that there were only two permissible ways of saying the pledge and verbally chastised Holloman in front of the class for exercising his constitutionally protected actions (either failing to salute the flag or expressing his opinion by raising his fist in a non-disruptive fashion). Similarly, the principal’s paddling of Holloman was a form of punishment in violation of the First Amendment. The court also reversed the grant of summary judgment to the school board because a jury could find that its policy requiring schools to incorporate a character education plan, including the Pledge of Allegiance, required teachers to ensure that their students actually recite the pledge.
As to the Freedom of Expression claim, the court held that the First Amendment guarantees a student the right to express his opinion in a non-disruptive fashion. The court found that Holloman’s gesture of silently raising his fist was, at the least, expressive conduct protected by the First Amendment. In reaching this decision, the court reaffirmed a school’s right “to adopt and enforce reasonable, non-discriminatory regulations as to the time, place and manner of student expressions and demonstrations.” Student expression may be regulated when doing so “contributes to the maintenance of order and decorum within the educational system,” allowing school authorities to prohibit, among other things, “lewd, indecent or offensive speech.” In determining whether expression warrants suppression, the court warned that “undifferentiated fear of apprehension of disturbance is not enough to overcome the right to freedom of expression, even in schools. ... There must be demonstrable factors that would give rise to any reasonable forecast by the school administration of substantial and material disruption of school activities before expression may be constitutionally restrained.” Holloman’s act of raising his fist was constitutionally protected because there was no evidence that he “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school.” The court noted that even if a jury found that Holloman’s actions disrupted his class and violated this standard, Holloman nonetheless articulated a violation of his First Amendment rights because the principal and teacher engaged in viewpoint-based discrimination when they punished Holloman for the substance of his unpatriotic views rather than an alleged disruption of the class.
The Holloman court held that teacher-conducted and coordinated moments of silent prayer violated the Establishment Clause. The court rejected the teacher’s argument that the moment of prayer was intended to teach the students compassion, pursuant to the state mandated character education plan, because attempting to further an ostensibly secular purpose through avowedly religious means, prayer, is considered to have a constitutionally impermissible purpose. The court distinguished school-led moments of silence, which can have a valid nonsecular purpose. The court held that the school board could also be found liable on this claim because, even though the silent prayer was not formal school board policy, it was sufficiently systemic to be considered a pattern or custom.
As a point of interest, the issue of whether a teacher-led recital of the Pledge of Allegiance violates the Constitution remains undecided by the United States Supreme Court. The Supreme Court declined to address the merits of this argument in Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301 (June 14, 2004). Instead, the Supreme Court dismissed the Newdow
case on procedural grounds, holding that the plaintiff, a non-custodial
father suing as the next-friend of his daughter, did not have standing to
prosecute the action.
For more information, e-mail Susan Edlein at
susan.edlein@hklaw.com or call toll free, 1-888-688-8500.
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