The U.S. Supreme Court in 1943 ruled that schools cannot force students to participate in the recitation of the Pledge of Allegiance to Old Glory.
The justices affirmed a lower court’s decision that said: “The salute to the flag is an expression of the homage of the soul. To force it upon one who has conscientious scruples against giving it, is petty tyranny unworthy of the spirit of this Republic and forbidden, we think, by the fundamental law.”
But the justices apparently forgot to say, too, that schools couldn’t demand students pledge allegiance to any other country’s flag, and that failure has led to a lawsuit over a Texas school’s actions being brought before the full panel of the 5th U.S. Circuit Court of Appeals.
At issue is the punishment by the school, the Achieve Early College High School in McAllen, Texas, of Brenda Brinsdon, then a 15-year-old sophomore, several years ago.
She declined to pledge allegiance to the Mexican flag when her Spanish instructor demanded it of her.
Then she was removed from the classroom and subjected to individual instructions, according to an appeal filed with the 5th U.S. Circuit Court of Appeals by the Great Lakes Justice Center, which is representing her.
A video from when the case began has the background:
The legal team now is asking the full 5th Circuit for a review, alleging the three-judge panel made several mistakes in its ruling
The petition, GLJC said, “challenges the constitutionality of an assignment that required students in Spanish class to stand at attention facing the Mexican flag and pledge allegiance to Mexico. Halfway through the pledge school officials required students to raise their right arm at a ninety-degree angle toward the flag and state, ‘We promise to you to always be loyal to the principles of freedom and justice that makes us an independent, human and generous nation, to which we dedicate our existence.'”
The student, a first generation Mexican-American, declined to pledge allegiance to Mexico but then cooperated, feeling “compelled to stand and say the pledge with her class.”
“Her teacher eventually required Brenda to research and write a paper in Spanish. Students who recited the pledge [individually] received high marks. School officials punished Brenda with a low grade on her essay and required her to report to the school office instead of attending her Spanish III course,” the legal team said.
The current petition asks the full 5th Circuit to overturn the panel’s decision.
“This assignment was unconstitutional compelled speech. Brenda is happy to engage in and learn more about Mexican culture,” said Erin Mersino, senior counsel with GLJC. “Reciting a loyalty oath to another country, however, crosses the line, both as a matter of her conscience, and as a matter of constitutional law.
“The students easily could have learned about Mexican culture without actually standing up and pledging their allegiance to the Mexican flag,” she said.
WND reported in 2006 when another school mandated the recitation by students and the quick reversal when the incident came to the attention of parents and others.
But in this case, the school has continued to fight, and it got support from the panel’s previous ruling, which said, “Brinsdon was not exercising a clearly established First Amendment right when she initially refused to recite the Mexican pledge.”
But her legal team told the full 5th Circuit, the Supreme Court has found, “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, nationals, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Further, her legal team, pointed out to the full court, “The panel’s decision overlooks one of the ‘bedrock First Amendment principles’: government officials may not ‘restrict speech based on listener reaction,’ even if the listeners are minors on a public school campus or individuals informed by the media.”
They argued: “Pledging one’s allegiance to a country is a patriotic exercise and act of nationalism. The panel incongruently acknowledged that the recitation of the American pledge of allegiance is a constitutionally protected observance, but then found that the recitation of the pledge of allegiance to Mexico amounted to a mere platitude.
“This trivializes the Mexican pledge as an observance to be mimicked and deserving of less legal significance.”
The dismissal of school officials from the lawsuit’s claim for damages also was inappropriate, the attorneys said.
“Qualified immunity is an objective standard; school officials are not shielded from civil liability if their conduct violates a clearly established right.”
The brief explained that although school officials claimed Brinsdon’s actions caused a disruption in the school, they presented no evidence for that.