AN OPEN LETTER TO FLORIDA PUBLIC SCHOOLS
Dear Florida public school officials:
“You will stand and you will stay quiet . . . If you don’t, you are going to be sent home and you’re not going to have a refund of your ticket price.”
When we first encountered those words today, we assumed they were uttered by an official from the North Korean Ministry of People’s Defense. You can imagine our disappointment when we saw instead it was a mandate from a Florida high school principal to his students concerning their conduct during the national anthem. And seemingly, it doesn’t stop with this one principal. As the article linked notes, it appears that state law (attempts) to dictate that only “upon written request by his or her parent” may a Florida public school student opt out of reciting the Pledge of Allegiance, and ostensibly, standing and remaining quiet for the national anthem.
As First Amendment defenders and advocates, we have a couple of suggestions for you. First, read the Supreme Court’s decision in Board of West Virginia School of Education v. Barnette. Then read it again. Try to take to heart Justice Jackson’s inspired words:
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.
Second, please don’t point to Tinker and Fraser and their ilk in an attempt to justify your mandate to students that they “stay quiet” during the national anthem, or even that they obtain permission from their parents to abstain from standing and such during the national anthem or Pledge of Allegiance. Yes, we know, you maintain the ability to curb some speech to the extent it substantially disrupts the educational environment. But a public authority figure telling citizens “you will stand and you will stay quiet” is so harmful to those precious freedoms of conscience and expression protected by the First Amendment that no attempt should ever be made to justify their utterance. Whether made in the educational environment or not.
And we’d suggest that requiring a student (especially a high school student) to obtain a permission from a parent to express their conscience and ideas imposes a substantial burden on that student’s exercise of his First Amendment freedoms. Yes, we’re aware the Eleventh Circuit refused to overturn this part of the state statute (although on grounds other than the First Amendment). But that doesn’t mean you have to stick with it.
Instead of wasting your energy attempting to justify liberty-crushing threats and imposing needless burdens on the exercise of those liberties, try something better. Encourage meaningful, open, and civil discussion of the issue at your school. Don’t compel political and societal viewpoints. Rather, let everyone have the opportunity to hear the ideas of the flag waivers, the angry dissenters, the military children with fathers and mothers deployed, and the Kaepernick-imitators. Some may change their minds. Some may dig in further. That’s ok. It’s how the freedom to think, the freedom to speak, and the freedom hear are supposed to work.
Simply put, foster the responsible exercise of a young person’s freedoms, don’t stifle it. As Justice Jackson wisely points out in Barnette:
That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.
The Madison Jamboree.