You can't make me do this.

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The First Amendment Can't Save You From Your Homework

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The First Amendment protects students against being forced to recite the Pledge of Allegiance. So how was it legal for a Texas teacher to require students to recite the Mexican pledge of allegiance, as a federal appeals court held this week? The answer lies in the difference between compelled symbolic speech and compelled class participation.

The events underlying the case attracted national attention of the Glenn Beck variety when they occurred in 2011. Brenda Brinsdon was then a high school sophomore in McAllen, Texas, a town near the Mexican border. The teacher of her Spanish class gave students the assignment of facing the Mexican flag with a 45-degree salute and reciting the Mexican pledge of allegiance. The assignment was intended both to teach Spanish language and to give students the “cultural” experience of imitating another nation’s pledge.

Brinsdon, whose mother is from Mexico, objected, explaining that she believed “pledging her allegiance to a different country was wrong.” Notably, she also thought none of the students should have to participate. The teacher told her that the assignment was graded and mandatory. Ultimately, after the principal’s intervention, Brinsdon was given an alternative assignment. She got a C, whereas other students mostly got A’s on the pledge assignment.

This being America, Brinsdon sued for violation of her constitutional rights. A federal district court rejected her claims. And the U.S. Court of Appeals for the 5th Circuit on Tuesday upheld that judgment.

To win a lawsuit against public officials for infringing your constitutional rights, you first have to show that the officials violated clearly established law.

Brinsdon’s best argument was that it’s clearly established law that school officials can’t compel students to recite the Pledge of Allegiance.

That’s true, of course -- and has been since 1943, when the U.S. Supreme Court reversed an earlier decision and held that there was a constitutional right against compelled speech that allows students to exempt themselves from saluting the flag and reciting the pledge.

That decision, West Virginia v. Barnette, is one of the most remarkable constitutional decisions in the court’s history. I teach it on the first day of my First Amendment class. The court’s opinion, by the great Justice Robert Jackson, has several highlights. Probably the most quoted is this winner:

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. If there are any circumstances which permit an exception, they do not now occur to us.

But the 5th Circuit correctly noticed that the issue in Brinsdon’s case isn’t whether she could be compelled to recite the U.S. pledge, but whether she could be required to recite the Mexican pledge as part of an educational exercise. And it held that because this was a different circumstance from the one discussed in the Barnette case, Brinsdon could not show that the teacher’s assignment was in violation of clearly established law.

The court’s decision was right -- and for a reason that comes right out of Jackson’s famous opinion. What makes the forced recitation of the U.S. pledge unconstitutional is that it prescribes an orthodox belief and makes students symbolically express their commitment to it. Crucially, the U.S. pledge in U.S. schools isn’t being performed as a make-believe exercise. It’s meant sincerely, or at least it’s supposed to be.

In the Texas classroom, the Mexican pledge was not intended as an indication of loyalty to Mexico. The point was to imagine what it would be like to have a loyalty that they did not necessarily possess.

By way of analogy, in my classes, I frequently require students to articulate arguments that they don’t believe to be true. That’s a crucial part of legal pedagogy. It’s the way students learn to anticipate the arguments that the other side will make when they are practicing lawyers. But at a deeper level, occupying the subject position of someone you disagree with is one of the most intellectually stimulating and productive things a person can do.

That still leaves the deep question of Brinsdon’s conscience. Suppose that, like the Jehovah’s Witnesses children in the Barnette case, she sincerely believes it’s wrong to recite the pledge of another country, even as an exercise in cultural understanding. Maybe she doesn’t want to put herself in someone else’s place. Shouldn’t that entitle her to an exemption?

Well, no. Students don’t have the constitutional right to opt out of educational assignments they don’t agree with -- even on grounds of conscience. Imagine a student who doesn’t want to study Christopher Columbus because she’s sincerely offended by the European conquest of America’s first peoples. She wouldn’t be entitled to an exemption -- and rightly not. The same would go for a student who wants to skip evolution in biology class because it violates his religious faith. He’s not entitled to opt out of the subject, nor should he be.

If the rule were otherwise, that would be the end of the curriculum in public schools. Someone would object to essentially every component, and the teacher would have to craft every lesson plan to avoid all the students’ tender consciences.

Public school necessarily entails teaching facts and values to students. They don’t have to agree, and they can’t be forced to affirm or pledge that they do. But the students do have to learn what’s being taught in the school -- even when that lesson is the unpopular one that it’s helpful to imagine yourself as someone else.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net