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| 1 minute read

Another victory for student free speech

A federal appellate court recently reaffirmed the right of a student to refuse to transcribe the Pledge of Allegiance. The case came to the court on interlocutory appeal after a trial court denied a motion to avoid trial. The plaintiff, a student, alleged that when she refused to write the Pledge of Allegiance, her teacher threatened to give her a zero for the assignment and retaliated in many other ways. The teacher contests the allegations, but because of the posture of the case, the court assumed for purposes of its opinion that all of the student’s claims were accurate.

The student stated in her complaint that she does not recite the pledge because "under God" is not consistent with her religious beliefs and the country does not in fact give the promised "liberty and justice for all." After several incidents in which teachers asked her to recite the pledge, the school sent a message to all teachers that, consistent with Texas law and her mother's request. the student should be excused. Within a few days, the student's Sociology teacher assigned the task of writing the pledge. When the student refused, the teacher subsequently singled her out for condemnation in various indirect ways.

The court found that the teacher was not entitled to qualified immunity because the law is clear that those actions violated the student's First Amendment rights. It is possible that a jury will find different facts if the case proceeds past settlement. For now, the lesson is that schools have to be careful not to take any actions retaliating for the exercise of constitutional rights, and have to find the difficult balancing act between allowing free expression and teaching critical thinking about diverse views.  

It is also well established that a government official violates the First Amendment by retaliating against a person for exercising First Amendment rights—that is, by taking “adverse actions” that are “substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct” that cause the plaintiff “an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity.”


schools, first amendment, youth serving organizations, youth services law, ausburn_deborah, insights