Q: If a student did not want to recite the Pledge of Allegiance, the only way he could not do that would be to get his parents' permission?
Q: What would be the sanctions for noncompliance?
A: It would be whatever sanctions the school does for other disciplinary things.
-- State House of Representatives testimony cited in Mishkin v. Pennsylvania
And for the past two years, that's how the state of Pennsylvania has sought to teach school kids to appreciate their freedom: by punishing them unless they did what they're told.
That effort may have ended with an Aug. 19 ruling from the Third Circuit Court of Appeals. It began back in 2002, with a state House bill sponsored by Rep. Allan Egolf (R-Perry) to make it mandatory for kids to recite either the Pledge of Allegiance or the National Anthem every morning at school. As Egolf explained during the legislative debate quoted above, a kid who remained silent during the pledge could be packed off to detention, with all the other disruptive influences.
Kids could avoid punishment if their parents granted permission to remain silent, of course. But the law's regard for parental authority went only so far. Parents couldn't send their kids to a school where the pledge wasn't recited, for example. The law forced private schools to recite it too, although lawmakers exempted parochial schools whose religion prohibited such displays.
It's hardly surprising that Egolf sponsored such a bill, given his limited interest in individual liberty. Earlier this year, he sued a gay Bucks County couple for seeking a marriage license -- a license they already have no hope of getting, thanks to another law Egolf sponsored. His Pledge bill received more than 80 House co-sponsors, Democrat and Republican. It passed by a vote of 200-1 in the House, 48-0 in the Senate.
But ironically, the law also encourages schools to celebrate "the values to be found in the freedom of speech," and to teach students how to "defend our country [from] those whose acts and ideologies are contrary to our American philosophy of life." And that's just what Philadelphia-area student Maxwell S. Mishkin did.
Along with his parents and a handful of private schools, he challenged Egolf's law in court, alleging that it violated his civil rights. A lower court judge ruled in Mishkin's favor last year, and the matter has been in court ever since.
Some red-blooded Americans are no doubt wondering what the problem is. Most of us said the pledge when we were in school, and we managed to avoid being brainwashed. And what's wrong with notifying parents that little Johnny might be a filthy stinking communist?
That's pretty much what lawyers for the state argued too. Parental notification wasn't a punishment, they insisted -- just an "administrative" measure. And besides, the pledge is only 31 words long.
In a recent decision, the Third Circuit Court of Appeals didn't buy it. It noted that only parents whose kids didn't participate would be notified, and that enforcing the law would be ugly: Teachers would have to "watch for students who refuse to recite the Pledge of Allegiance, record their names, report them to the school administration, and notify their parents." Teachers monitoring kids for sufficient patriotism -- they had that civics lesson in the Soviet Union.
The real problem with the law is that it completely misunderstands the country it seeks to honor. America isn't great because we all say the Pledge. We all say the Pledge because America is great. And one of the things that make it great is the fact that our government doesn't force us to say things.
In school or out, that's an increasingly hard lesson to teach in these post-9/11 days. Republicans routinely insist that criticizing the president is "un-American," that second-guessing our foreign policy is "blaming America first." To speak out, or not speak when you are told to, is regarded as unpatriotic.
But as Justice Dolores Sloviter wrote in the court opinion, "[M]ost citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem. But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority -- those persons who march to their own drummers."
Looks like somebody paid attention in civics class. Too bad so few state legislators can say the same.