                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2004

Circle Sch v. Atty Gen PA
Precedential or Non-Precedential: Precedential

Docket No. 03-3285




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"Circle Sch v. Atty Gen PA" (2004). 2004 Decisions. Paper 365.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/365


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                   PRECEDENTIAL            WACHTEL, Member, State Board of
                                              Private Academic Schools
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                    Vicki Phillips; Jane M.
                                                 Allis; Denise Biondo; Bryce
                                                 Hatch; Marquita Jones;
             No. 03-3285                         C ar ol yn P a sa ne k; D r.
                                                 Roberta L. Schomburg; Kim
                                                 Smith; Ted Wachtel,
   THE CIRCLE SCHOOL; JAMES                                         Appellants
   RIETMULDER; MAXW ELL S.
  MISHKIN, by His Parents and Next               *(Amended per Court Order
 Friends Jeremy and Barbara Mishkin;             dated 3/11/04)
  PHYLLIS HOCHBERG; PROJECT
    LEARN, a School Community;
     UPATTINAS SCHOOL AND                   On Appeal from the United States
RESOURCE CENTER; THE SCHOOL               District Court for the Eastern District of
 IN ROSE VALLEY; THE CREFELD                           Pennsylvania
              SCHOOL                           (D.C. Civil No. 03-cv-00763)
                                           District Judge: Hon. Robert F. Kelly
                   v.

    THE HONORABLE GERALD J.                        Argued March 9, 2004
  PAPPERT*, Attorney General for the
 Commonwealth of Pennsylvania; THE         Before: SLOVITER and NYGAARD,
   HONORABLE VICKI PHILLIPS,                Circuit Judges, and OBERDORFER,
Secretary of Education Designee for the                District Judge*
Commonwealth of Pennsylvania; JANE
   M. ALLIS, Member, State Board of               (Filed August 19, 2004)
  Private Academic Schools; DENISE
   BIONDO, Member, State Board of
   Private Academic Schools; BRYCE        Gerald J. Pappert
    HATCH, Member, State Board of               Attorney General
Private Academic Schools; MARQUITA        Howard G. Hopkirk (Argued)
JONES, Member, State Board of Private           Deputy Attorney General
     Academic Schools; CAROLYN
  PASANEK, Member, State Board of
 Private Academic Schools; ROBERTA
L. SCHOMBURG, DR., Member, State             *
                                                 Hon. Louis F. Oberdorfer, Senior
  Board of Private Academic Schools;      Judge, United States District Court for
 KIM SM ITH, Member, State Board of       the District of Columbia, sitting by
    Private Academic Schools; TED         designation.
Amanda L. Smith                                 provide for the recitation of the Pledge of
       Deputy Attorney General                  Allegiance or the national anthem at the
Calvin R. Koons                                 beginning of each school day. Like similar
       Senior Deputy Attorney General           statutes in other states, Act 157 allows
John G. Knorr, III                              private and parochial schools to opt out of
       Chief Deputy Attorney General            its requirements on religious grounds, and
Office of Attorney General                      gives students the option of refraining
Appellate Litigation Section                    from participating in the recitation and
Harrisburg, PA 17120                            saluting the national flag on religious or
                                                personal grounds. § 7-771(c)(1)-(2).1
      Attorneys for Appellants                  How ever, it also requires school
                                                supervising officials to notify, in writing,
Joyce S. Meyers                                 parents or guardians of those students who
Michael K. Twersky (Argued)                     have declined to join in the recitation or
Robert P. Blood                                 salute the flag. § 7-771(c)(1).
Montgomery, McCracken, Walker &
                                                       We hold that the parental
       Rhoads, LLP
                                                notification provision of the Act violates
Philadelphia, PA 19109
                                                the school students’ First Amendment
                                                right to free speech and is therefore
      Attorneys for Appellees
                                                unconstitutional. We also hold that certain
                                                of the Act’s remaining provisions violate
Stefan Presser
                                                private schools’ First Amendment right to
American Civil Liberties Foundation of
                                                free expressive association. We will
       Pennsylvania
                                                therefore affirm the District Court’s
Philadelphia, PA 19107
                                                judgment.
      Attorney for Appellees                                BACKGROUND
                                                       24 Pa. Cons. Stat. Ann. § 7-771(c)
      OPINION OF THE COURT
                                                   1
                                                       Although the plain language of
                                                Section 7-771(c)(1) only allows students
SLOVITER, Circuit Judge.                        to opt out of reciting the Pledge of
                                                Allegiance and saluting the flag, the
       Pennsylvania Act 157 of 2002
                                                District Court held that the phrase
(“Act 157” or the “Act”), codified as 24
                                                “saluting the flag” also encompasses the
Pa. Cons. Stat. Ann. § 7-771(c), mandates
                                                singing of the national anthem. The
that all public, private, and parochial
                                                Circle School v. Phillips, 270 F. Supp. 2d
schools within the Commonwealth display
                                                616, 622 (E.D. Pa. 2003). Neither party
the national flag in every classroom and
                                                challenges that holding here.

                                            2
reads as follows:                                      which the school is based.
       (1) All supervising officers             § 7-771(c).
       and teachers in charge of
                                                        Subsection one requires all
       public, private or parochial
                                                Pennsylvania schools to conduct a
       schools shall cause the Flag
                                                recitation of the Pledge of Allegiance or
       of the United States of
                                                the national anthem at the beginning of
       America to be displayed in
                                                each school day. Students may decline
       every classroom during the
                                                such recitation for religious or personal
       hours of each school day
                                                reasons, but their refusal would be
       and shall provide for the
                                                reported to their parents through written
       recitation of the Pledge of
                                                notification from their schools. Subsection
       Allegiance or the national
                                                two allows private and parochial schools
       anthem at the beginning of
                                                to decline displaying the national flag,
       each school day. Students
                                                reciting the Pledge of Allegiance, or
       may decline to recite the
                                                saluting the flag on religious grounds.
       Pledge of Allegiance and
       may refrain from saluting                        Prior to the final passage of Act
       the flag on the basis of                 157, which amended Section 7-771(c) to
       religious conviction or                  its current form, Representative Allan C.
       personal belief.            The          Egolf of the Pennsylvania House of
       supervising officer of a                 Representatives, who sponsored and
       school subject to the                    introduced the bill in the Commonwealth’s
       r e q u i r e m e n t s o f t h is       House, stated that under previously-
       subsection shall provide                 existing provisions, schools were not
       written notification to the              required to have a flag in every classroom
       parents or guardian of any               and recite the Pledge of Allegiance or the
       student who declines to                  national anthem every day:
       recite the P ledge of
                                                       This bill would require [that
       Allegiance or who refrains
                                                       every school day is started
       from saluting the flag.
                                                       with the Pledge or national
                                                       anth em.] It is not a
       (2) This subsection shall not
                                                       require m e n t t h a t [the
       apply to any private or
                                                       students] do the pledge, but
       parochial school for which
                                                       it is a requirement that the
       the display of the flag, the
                                                       school offer it. Current law
       recitation of the Pledge of
                                                       does not require that.
       Allegiance or the salute of
       t h e flag violates the                  App. at 78. Responding to another
       religious conv iction on                 representative’s question regard ing


                                            3
students’ refusal to participate in reciting       anything else, if the student
the Pledge or anthem, Egolf further stated         does not want to participate
that the only way a student could do so,           in class, the teachers do
under the Act, would be to get the                 whatever they can to get
permission of his or her parents:                  them to participate, so I
                                                   would assume they would
                Mr. VITALI. Now,
                                                   do the same here, unless the
       this bill, as I understand it or
                                                   parents have actually opted
       as I read it quickly, if a
                                                   the student out of it. But,
       student did not want to
                                                   you know, that is up to them
       r e c ite the P ledge o f
                                                   locally. You cannot make a
       Allegiance, the only way he
                                                   person say something.        I
       could not do that would be
                                                   suppose, but if they stand
       to get his parents’
                                                   there and do not create a
       permission not to do it?
                                                   disturbance, that is up to the
               Mr. EGOLF. Right.                   teacher.
       Maybe for religious reasons
                                                         Mr. VITALI. What
       or whatever, so if the
                                                   would be the sanctions for
       parents        want      to–
                                                   noncompliance . . . .
       Apparently, there are some
       religions that do not do the                          Mr. EGOLF.          It
       pledge, so they could opt                   wo uld be whatever
       their child out of that.                    sanctions the school does
                                                   for other disciplinary things.
              ....
                                                   . . . [I]t is the local school’s
              Mr. VITALI. So if                    determination how they
       you had a [high school]                     want to handle it.
       senior who, for whatever
                                                          Mr. VITALI. So the
       misguided or exploratory
                                                   law itself does not provide
       reasons, decided he simply
                                                   any sanctions?
       did not want to do this and
       his parent would not give                           Mr. EGOLF. There
       him permission not to, he                   is no punishment in the bill;
       could be compelled to say                   nothing specified. It is just
       the Pledge of Allegiance?                   l i k e all t h e o t h er
                                                   requirements in school.
              Mr. EGOLF. Well, it
                                                   Again, it is the local
       is offered for them.       I
                                                   school’s determination how
       assume . . . it is up to the
                                                   they want to handle any
       classroom teacher. Just like
                                                   disciplinary action.

                                               4
App. at 78-79.                                      violates their freedom to expressive
                                                    association by requiring them to hold
        Plaintiffs, a public high school
                                                    recitations that contradict their educational
student, two parents of private school
                                                    philosophies. App. at 42-43. Finally, all
students, and several non-religious private
                                                    plaintiffs contend that Section 7-771(c)(2),
schools, claim that the Act, by compelling
                                                    as amended by the Act, violates the First
schools to hold, and students to participate
                                                    Amendment Establishment Clause by
in, recitations of the Pledge of Allegiance
                                                    privileging certain religious schools (those
or the national anthem and salutations of
                                                    that do not have to hold recitations because
the flag, on its face violates the First and
                                                    of their religious beliefs) over others.
Fourteenth Amendments. The student
                                                    App. at 44.
plaintiff, Maxwell Mishkin, asserts that the
Act violates his First Amendment free                       Plaintiffs filed their facial challenge
speech rights because the plain language            to the Act in the District Court for the
of Section 7-771(c)(1) allows him to opt            Eastern District of Pennsylvania and
out of reciting the Pledge of Allegiance,           named various Commonwealth officials as
but not of the singing of the national              defendants.         The Commonw ealth,
anthem. App. at 44. He also argues that             responding to plaintiffs’ constitutional
the parental notification portion of the Act        claims, contends that the Act does allow
serves as a deterrent to his exercise of free       students to opt out of the singing of the
expression rights not to participate in such        national anthem; that the phrase “personal
recitations, and that the phrase “personal          belief” is not overly vague; and that the
belief,” used in Section 7-771(c)(1) as the         parental notification provision is
permissible ground for students to decline          administrative rather than punitive in
reciting the Pledge of Allegiance and               nature. More broadly, it argues that the
saluting the flag, is unconstitutionally            Commonwealth has a compelling interest
vague. App. at 45-46. The parental                  in providing a full educational experience
plaintiffs, James Rietmulder and Phyllis            for children, including the teaching of
Hochberg, claim that the Act violates their         patriotism and civics; that any school can,
fundamental liberty interest under the              while offering the recitations every school
Fourteenth Amendment to choose the way              day, disavow the government policy
in which their children are educated                underlying the requirement and make a
because it interferes with the missions and         general disclaimer; and that the Act does
educational philosophies of the private             not violate the Establishment Clause by
schools in which they choose to enroll              providing le gitima te a nd neutra l
their children. App. at 43-44. The private          accommodations to certain religious
school plaintiffs, the Circle School, Project       schools.
Learn, the Crefeld School, the School in
                                                           The parties, after jointly stipulating
Rose Valley, and Upattinas School and
                                                    to certain facts, filed cross motions for
Resource Center, argue that the Act
                                                    summary judgment. The District Court, in

                                                5
an order and opinion dated July 15, 2003,                   restrictive mea ns to advan ce the
granted in part, and denied in part, both                   government’s compelling interest to teach
motions.        Specifically, it ruled in                   patriotism and civics. 270 F. Supp. 2d at
defendants’ favor that Section 7-771(c)(1)                  626-27. Finally, the court agreed with the
does allow students to opt out of the                       plaintiffs’ claim that Section 7-771(c)(1)
singing of the national anthem and does                     unconstitutionally interferes with the
not violate the First Amendment on that                     school plaintiffs’ ability to express their
ground; that “personal belief” as used in                   values and forces them to espouse the
Section 7-771(c)(1) has a commonly                          Commonwealth’s views. 270 F. Supp. 2d
accepted and readily ascertainable                          at 627-29.
m e a n i n g a n d i s th e r e f o r e n ot
                                                                     The end result of the District
unconstitutionally vague; and that Section
                                                            Court’s decision is that Section 7-
7-771(c)(2) does not violate th e
                                                            771(c)(1) is unconstitutional on its face.
Establishment Clause because it is
                                                            Moreover, although the court found
n a r r o w l y tailored to serv e th e
                                                            Section 7-771(c)(2) to be a proper exercise
Commonwealth’s compelling interest in
                                                            of government power under the First
accommodating religious practices. The
                                                            Amendment Establishment Clause, it also
Circle School v. Phillips, 270 F. Supp. 2d
                                                            found that the section has no independent
616, 621-23, 629-31 (E.D. Pa. 2003).
                                                            force in the absence of Section 7-
These findings are not at issue in this
                                                            771(c)(1). 270 F. Supp. 2d at 631. The
appeal.
                                                            District Court therefore entered a
          The District Court, however, ruled                pe r m a ne nt injunc tion pro hibitin g
that the parental notification clause in                    defendants from enforcing the Act.
Section 7-771(c)(1) is a viewpoint-based
                                                                    Defendants now appeal the portion
regulation that operates to chill students’
                                                            of the District Court’s order granting
speech. 270 F. Supp. 2d at 623-26. It
                                                            summary judgment in favor of plaintiffs.
cannot survive the strict scrutiny required
                                                            As plaintiffs do not cross-appeal the
for such viewpoint discrimination because
                                                            District Court’s rulings in favor of
it is not the most narrowly tailored method
                                                            defendants, our review is limited solely to
to achieve the government’s interest in
                                                            the three issues presented by defendants,
notifying the parents of the administration
                                                            representing the Commonwealth: whether
of the Act, an interest that is, in any case,
                                                            the parental notification provision violates
not sufficiently compelling to infringe on
                                                            students’ First Amendment free speech
students’ free speech rights. Id. at 624.
                                                            rights, whether the Act violates parents’
The court further ruled that Section 7-
                                                            Fourteenth Amendment fundam ental
7 7 1 ( c ) (1 ) v i o l a te s t h e p a r e n t s ’
                                                            liberty interest in choosing the educational
fundamental liberty interest, under the
                                                            method used to educate their children, and
Fourteenth Amendment, in the education
                                                            whether the Act violates the private
of their children because it is not the least
                                                            schools’ exercise of their rights in free

                                                        6
expressive association.                              language makes clear, however, the First
                                                     Amendment’s guarantee of “wide freedom
 JURISDICTION AND STANDARD
                                                     in matters of adult public discourse” does
         OF REVIEW
                                                     not mean that the First Amendment rights
        This is a civil rights action brought        of students in the public schools are
pursuant to 42 U.S.C. § 1983. The District           “automatically coextensive with the rights
Court had subject matter jurisdiction over           of adults in others settings.” Bethel Sch.
the action under 28 U.S.C. §§ 1331, 1343.            Dist. No. 403 v. Fraser, 478 U.S. 675, 682
We have jurisdiction over the appeal under           (1986). For example, the Court ruled in
28 U.S.C. § 1291.                                    Fraser that a student may be disciplined for
                                                     having delivered a speech that was
        This court exercises plenary review
                                                     sexually explicit, but not legally obscene,
over the district court’s decision to grant or
                                                     at a school assembly. Id. at 685-86. The
deny summary judgment.            “Summary
                                                     Court also ruled in Hazelwood Sch. Dist.
judgment is proper if there is no genuine
                                                     v. Kuhlmeier, 484 U.S. 260 (1988), that a
issue of material fact and if, viewing the
                                                     high school principal may delete materials
facts in the light most favorable to the non-
                                                     that he found objectionable from the
moving party, the moving party is entitled
                                                     student-run school newspaper, as “[a]
to judgment as a matter of law.” Pi
                                                     school need not tolerate student speech
Lambda Phi Fraternity, Inc. v. Univ. of
                                                     that is inconsistent with its basic
Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir.
                                                     educational mission.” Id. at 268 (citation
2000).
                                                     and internal quotation omitted). More
              DISCUSSION                             recently, we have held that a school’s
                                                     prohibition of language threatening
A. Whether the parental notification clause
                                                     violence or use of force, and suspension of
of Section 7-7 71(c)(1) constitutes
                                                     a kindergarten student for uttering such
viewpoint discrimination in violation of
                                                     language during recess in the school yard,
the First Amendment
                                                     did not violate the student’s First
        In Tinker v. Des Moines Indep.               Amendment rights. S.G. ex rel. A.G. v.
Comty. Sch. Dist., 393 U.S. 503 (1969),              Sayreville Bd. of Educ., 333 F.3d 417 (3d
the Supreme Court stated the well-known              Cir. 2003).
principle that “First Amendment rights,
                                                            This careful balance between the
applied in light of the spec ial
                                                     First Amendment rights of students and
characteristics of the school environment,
                                                     the special needs of the state in ensuring
are available to teachers and students. It
                                                     proper educational standards and
can hardly be argued that either students or
                                                     curriculum is demonstrated by the line of
teachers shed their constitutional rights to
                                                     cases beginning with West Virginia State
freedom of speech or expression at the
                                                     Bd. of Educ. v. Barnette, 319 U.S. 624
schoolhouse gate.” Id. at 506.
                                                     (1943), in which the Supreme Court
       As the first part of the quoted

                                                 7
upheld a district court’s injunction against         public schools that we examine the
the enforcement of a state board of                  Commonwealth’s interest in the parental
education resolution requiring public                notification clause of Section 7-771(c)(1).
school students to salute the national flag          The Commonwealth contends that the Act,
and punishing a student’s refusal to salute          with the student opt-out clause and the
the flag as an act of insubordination                p a r e n t al n o t i f i c a t i o n m e c h a n i s m ,
qualifying such student for expulsion. See           represents a proper balance between the
also Lipps v. Morris, 579 F.2d 834, 836              students’ right to freedom of speech and
(3d Cir. 1978) (ruling that a state statute          the Commonwealth’s (and some parents’)
requiring students to stand during                   interest in the proper instruction of
recitations of the Pledge of Allegiance was          patriotic and civic values in all schools that
an unconstitutional compulsion of                    “does not function to punish or discourage
expression). Noting that “the compulsory             students’ activities based upon the
flag salute and pledge requires affirmation          viewpoints that they choose to express.”
of a belief and an attitude of mind,” 319            Appellants’ Br. at 17. They further assert
U.S. at 633, the Barnette Court viewed the           that “[w]hile notification provisions may at
board of education’s resolution as a                 times appear punitive,” the purpose of the
conflict “between authority and rights of            notification system, as designed in the Act,
the individual,” with “[t]he State                   “simply serves an administrative function,
assert[ing] power to condition access to             designed to efficiently inform all parents
public education on making a prescribed              of an aspect of their children’s education.”
sign and profession and at the same time to          Id.
coerce attendance by punishing both
                                                             In support of its argument for the
parent and child.” Id. at 630-31. While
                                                     constitutionality of the Act’s parental
the Barnette Court concluded that
                                                     notification scheme, the Commonwealth
government officials are forbidden under
                                                     points to the parental notification
the Constitution to compel or coerce
                                                     requirements upheld by the Supreme Court
students to salute the national flag or recite
                                                     in the context of abortions by minors. In
the Pledge of Allegiance, id. at 642, the
                                                     H.L. v. Matheson, 450 U.S. 398 (1981),
Court has subsequently found state and
                                                     the Supreme Court held constitutional a
local regulations offering the Pledge of
                                                     state statute requ iring ph ysicians
Allegiance, but permitting students to
                                                     performing abortions to “[n]otify, if
abstain from the recitation, as “[c]onsistent
                                                     possible, the parents or guardian of the
with our case law.” Elk Grove Unified
                                                     woman upon whom the abortion is to be
Sch. Dist. v. Newdow, 124 S. Ct. 2301,
                                                     performed, if she is a minor . . . .” Id. at
2306 (2004) (citing Barnette).
                                                     400 (citation and emphasis omitted). The
       It is therefore in this context of            Court, relying partly on Belotti v. Baird,
constrained, but not complete absence of,            443 U.S. 622 (1979) (Belotti II), reasoned
First Amendment rights for students in               that the statute in question “gives neither


                                                 8
parents nor judges a veto power over the               that the Pennsylvania statute here, which
minor’s abortion decision. . . . As applied            merely provides for parental notification,
to immature and dependent minors, the                  is constitutional. Appellants’ Br. at 18.
statute plainly serves the important
                                                               The Commonwealth’s reliance on
considerations of family integrity and
                                                       the abortion cases is fundamentally
protecting adolescents which we identified
                                                       misplaced. Those decisions were rendered
in Belotti II. . . . [T]he statute [also] serves
                                                       under a different provision of our
a significant state interest by providing an
                                                       Constitution, invoked a different set of
opportunity for parents to supply essential
                                                       competing interests and rights, and
medical and other information to a
                                                       involved parental notification schemes that
physician.” Matheson, 450 U.S. at 411;
                                                       are differently structured. Not only are
see also Belotti II, 443 U.S. at 640 (stating
                                                       cases such as Matheson and Belotti II
that “parental notice and consent are
                                                       grounded on individuals’ rights under the
qualifications that typically may be
                                                       Due Process clause of the Fourteenth
imposed by the State on a minor’s right to
                                                       Amendment rather than the Free Speech
make important decisions. As immature
                                                       clause of the First Amendment, but the
minors often lack the ability to make fully
                                                       interests involved in those cases–the
informed choices that take account of both
                                                       maturity of the pregnant minor seeking
immediate and long-range consequences,
                                                       abortion, the significant third-party effects
a State reasonably may determine that
                                                       such abortions may have, and the state’s
parental consultation often is desirable and
                                                       interest in protecting the fetus–are wholly
in the best interest of the minor”).
                                                       different from the state’s provision of
       More recently, the Supreme Court                proper educational curriculum and the
h a s u p h e ld parental notific atio n               students’ right to be free from compelled
requirements for abortions by minors, so               expression. These are critical distinctions
long as there exists a judicial bypass                 which the Supreme Court addressed in
mechanism for those requirements.                      Barnette: “In weighing arguments of the
Lambert v. Wicklund, 520 U.S. 292                      parties it is important to distinguish
(1997); Ohio v. Akron Ctr. for Reprod.                 between the due process clause of the
Health, 497 U.S. 502 (1990); see also                  Fourteenth Amendment as an instrument
Planned Parenthood of Southeastern Pa. v.              for transmitting the principles of the First
Casey, 505 U.S. 833 (1992) (upholding                  Amendment and those cases in which it is
parental consent requirement for abortion              applied for its own sake. . . . Much of the
by minors based on the existence of a                  vagueness of the due process clause
judicial bypass mechanism). Drawing                    disappears when the specific prohibitions
from the balance between “the rights of a              of the First become its standard.” 319 U.S.
parent to control his or her child with a              at 639.
minor’s right” that was involved in these
                                                              Returning to the First Amendment
abortion cases, the Commonwealth argues
                                                       analysis of the parental notification clause,

                                                   9
we agree with the District Court that the          which permit the Government to
notification requirement constitutes               discriminate on the basis of the content of
viewpoint discrimination that must survive         the message cannot be tolerated under the
strict scrutiny in order to be held                First Amendment.” Regan v. Time, Inc.,
constitutional. In Barnette, the Supreme           468 U.S. 641, 648-49 (1984). But when
Court stated:                                      the regulations in question go beyond
                                                   content discrimination and turn on the
       The freedom asserted by
                                                   specific views expressed by a speaker,
       these appellees [Jehovah
                                                   such “[v]iewpoint discrimination is [ ] an
       Witness students who refuse
                                                   egregious form of content discrimination”
       to recite the Pledge of
                                                   and “[t]he government must abstain from
       Allegiance] does not bring
                                                   regulating speech when the specific
       them into collision with
                                                   motivating ideology or the opinion or
       rights asserted by any other
                                                   perspective of the speaker is the rationale
       individual.     It is such
                                                   for the restriction.” Rosenberger v. Rector
       c o n f licts w h ic h m os t
                                                   & Visitors of the Univ. of Va., 515 U.S.
       frequently require
                                                   819, 829 (1995). As Justice Brennan
       intervention of the State to
                                                   pointed out, “[v]iewpoint discrimination is
       determine where the rights
                                                   censorship in its purest form.” Perry Educ.
       of one end and those of
                                                   Ass’n. v. Perry Local Educators Ass’n.,
       another begin.        But the
                                                   460 U.S. 37, 62 (1983) (Brennan, J.,
       refusal of these persons to
                                                   dissenting).
       participate in the ceremony
       does not interfere with or                          Pennsylvania’s parental notification
       deny rights of others to do                 clause clearly discriminates among
       so. . . . The sole conflict is              students based on the viewpoints they
       between authority and rights                express; it is “only triggered when a
       of the individual.319 U.S. at               student exercises his or her First
       630.2                                       Amendment right not to speak.” 270 F.
                                                   Supp. 2d at 623. A student’s decision to
      When the imposition of such
                                                   recite the Pledge of Allegiance or the
government authority is based on the
                                                   national anthem, and thereby adopt the
content of the speech, such “[r]egulations
                                                   specific expressive messages symbolized
                                                   by such an act, does not trigger parental
                                                   notification.     On the other hand, a
   2
        In a different context, we recently        student’s refusal to engage in the required
reiterated the principle that the First            recitation leads to a written notice to his or
Amendment prevents the government                  her parents or guardian, and possibly
from compelling individuals to express             parental sanctions. As the District Court
certain views. See Cochran v. Veneman,             correctly pointed out, given that the
359 F.3d 263, 267 (3d Cir. 2004).

                                              10
purpose of the bill is to support the               Trustees, 635 F.2d 216, 228 (3d Cir.
recitation of the Pledge of Allegiance or           1980).
the national anthem in schools, a parental
                                                             The Commonwealth, on the other
notification clause that is limited only to
                                                    hand, does not offer any convincing
parents of students who refuse to engage
                                                    governmental interest which this parental
in such recitation may have been
                                                    notification scheme is designed to further.
purposefully drafted to “chill speech by
                                                    Its claims that “the parental notification
providing a disincentive to opting out of
                                                    system simply serves an administrative
Act.” 3 Id. at 624. The Supreme Court has
                                                    function, designed to efficiently inform all
repeatedly stated that “constitutional
                                                    parents of an aspect of their children’s
violations may arise from the deterrent, or
                                                    education,” and that “[p]resumably, less
‘chilling,’ effect of govern men tal
                                                    administrative resources would be
regulations that fall short of a direct
                                                    expended informing the parents of those
prohibition against the exercise of First
                                                    who declined to participate than informing
Amendment rights.”        Bd. of County
                                                    all parents,” are unpersuasive. Appellants’
Comm’rs v. Umbehr, 518 U.S. 668, 674
                                                    Br. at 17 & n.6. The administrative
(1996) (quoting Laird v. Tatum, 408 U.S.
                                                    c o n v e n i e nc e a r g u m e n t a p p e ar s
1, 11 (1972)); see Trotman v. Bd. of
                                                    makeweight. It appears just as likely, if
                                                    not more likely, that notification to all the
                                                    school’s parents at one time, possibly
   3
        The legislative history provides            along with other notices sent at the
some evidence that such disincentive was            beginning of the school year, would
indeed part of the Commonwealth’s                   actually conserve administrative resources.
motivation in adopting the parental                 Instead, under the Act, teachers must
notification scheme. Representative                 watch for students who refuse to recite the
Egolf, for example, suggested prior to              Pledge of Allegiance, record their names,
the bill’s passage that if a student refuses        report them to the school administration
to recite the Pledge or the national                and notify their parents individually.
anthem and the student’s parents do want
                                                           Of more fundamental importance,
him or her to follow such recitation, the
                                                    the Commonwealth’s stated interest of
school may impose “whatever sanctions
                                                    parental notification is simply not “so
the school does for other disciplinary
                                                    compelling of an interest” as to justify the
things.” 270 F. Supp. 2d at 624. While
                                                    viewpoint discrimination that significantly
the opinion of a single legislator made in
                                                    infringes students’ First Amendment
the course of legislative debates is not
                                                    rights. 270 F. Supp. 2d at 624. We agree
dispositive for our adjudication of a
                                                    with the District Court that the parental
fundamental constitutional question, the
                                                    notification clause of Section 7-771(c)(1)
view of the legislator who introduced the
                                                    unconstitutionally treads on students’ First
bill sheds some light on its underlying
                                                    Amendment rights.
motivation.

                                               11
B. Whether Section 7-771(c)(1) violates               . . . [T]o come within [the First
the school plaintiffs’ First Amendment                Amendment’s] ambit, a group must engage
right to freedom of expressive association            in some form of expression, whether it be
                                                      public or private.” Id. at 648.
        The District Court ruled that
Section 7-771(c)(1) “unconstitutionally                       Here, the record supports the
interferes with the School Plaintiffs’                holding of the District Court that the
ability to express their values and forces            school plaintiffs engage in expressive
them to espouse the Commonwealth’s                    association, as required by Dale. By
views.”      270 F. Supp. 2d at 629.                  nature, educational institutions are highly
Specifically, the court agreed with the               expressive organizations, as their
school plaintiffs that Section 7-771(c)(1)            philosophy and values are directly
“requires them to affirm and have their               inculcated in their students. Each school
students affirm the Commonwealth’s view               plaintiff has shown that it possesses clear
on patriotism . . . impairing their ability to        educational philosophies, missions and
express certain values and philosophies               goals. App. at 56-71, 82-90. The Circle
which they wish to express. . . . [and]               School’s public mission statement includes
eliminat[ing] the ability of the students to          the following: “[w]e believe in the wisdom
make a choice, without coercion, whether              of each person to know what’s best for
to recite the Pledge or Anthem.” App. at              him or her,” that “freedom to entertain
17.                                                   ideas must be unbounded,” and that “the
                                                      child person is encouraged to explore
       The freedom of expressive
                                                      widely . . . physically, intellectually,
association received its most recent and
                                                      emotionally, socially, and spiritually” so
extensive analysis in Boy Scouts of Am. v.
                                                      that s/he may “grow[] in skills of
Dale, 530 U.S. 640 (2000), where the
                                                      perception and judgment.” App. at 56-57.
Supreme Court held that the Boy Scouts
                                                      Project Learn, similarly, states that “the
could expel an assistant scoutmaster for
                                                      educational program must provide the
his homosexuality, notwithstanding New
                                                      opportunity for children to share in the
Jersey’s Law Against Discrimination,
                                                      planning and directing of the learning
because the Boy Scouts engaged in
                                                      experience,” and “[t]he final choice must
“expressive association.” Id. at 644. The
                                                      always be the child’s to participate in an
inclusion of a homosexual in the
                                                      activity or not . . . the teacher’s
organization, as the state law compelled,
                                                      responsibility is to help the child to see
would therefore violate the First
                                                      clearly the choices available and the
Amendment interest of the Boy Scouts.
                                                      possible consequences of particular
The Court stated that “[t]o determine
                                                      choices.” App. at 66. Section 7-771(c), by
whether a group is protected by the First
                                                      requiring all schools to offer recitations of
Amendment’s expressive associational
                                                      the Pledge of Allegiance or the national
right, we must determine whether the
                                                      anthem to students every morning,
group engages in ‘expressive association.’

                                                 12
substantially burdens the schools’ mission           neither narrowly tailored nor the least
of “freedom of choices.”                             restrictive mean of achieving that interest.
                                                     Pennsylvania law requires that all schools
        In this regard, the only defense
                                                     teach civics, as well as a variety of other
offered by the Commonwealth on Section
                                                     subject matters. 24 Pa. Cons. Stat. Ann. §
7-771(c)’s constitutionality is that the             15-1511. Under that statute, each school
Pledge is “only thirty-one (31) words,” the          may select the method to satisfy that
anthem is “eighty (80) words,” the                   requirement, which need not be by the rote
recitation only takes “a very short period           recitation of prescribed words. The latter,
of time each day,” and “the private schools          which is mandated by Section 7-771(c), is
[can] make a general disclaimer” regarding           therefore not the least restrictive method
the recitation. Appellants’ Br. at 27-28.            for achieving the Commonwealth’s goal.
Certainly, the temporal duration of a                It follows that Section 7-771(c) violates
burden on First Amendment rights is not              the school plaintiffs’ First Amendment
determinative of whether there is a                  right to freedom of association.
constitutional violation, especially when
                                                     C. Whether Section 7-771(c)(1) violates
the burden imposed by the state carries a
                                                     the parent plaintiffs’ fundamental liberty
clear and powerful message that is to be
                                                     interest in the education of their children
disseminated every school day. Similarly,
the fact that the schools can issue a general               Finally, plaintiffs argue that the Act
disclaimer along with the recitation does            violates the student parents’ fundamental
not erase th e Fir s t A m endment                   liberty interest, under the Fourteenth
infringement at issue here, for the schools          Amendment, in the education of their
are still compelled to speak the                     children. Specifically, they assert that
Commonwealth’s message. Otherwise the                “[t]he Act . . . infringes on the rights of
state may infringe on anyone’s First                 parents of [students enrolled in plaintiff
Amendment interest at will, so long as the           private schools] to choose the manner in
mechanism of such infringement allows                which to educate their children by
the speaker to issue a general disclaimer.           imposing restrictions unrelated to
Such an idea is contrary to the First                legitimate educational concerns, including
Amendment’s plain language.                          but not limited to the requirement that non-
                                                     religious private schools begin each day
       As we find that Section 7-771(c)
                                                     with a recitation of the Pledge of
infringes on the school plaintiffs’ First
                                                     Allegiance or National Anthem as well as
Amendment associational rights, we must
                                                     the requirement contained in the Parental
examine whether it survives strict scrutiny.
                                                     Notification Provision.” App. at 43-44.
W e d o n o t q u e st i o n t h a t t h e
                                                     They rely on Meyer v. Nebraska, 262 U.S.
Commonwealth’s asserted interest of
                                                     390 (1923), where a plurality of the Court
teaching patriotism and civics in all
                                                     held unconstitutional a statute prohibiting
schools is compelling, but the Act is
                                                     teaching in German, and Pierce v. Soc’y of

                                                13
the Sisters, 268 U.S. 510 (1925), where the           march to their own drummers. It is they
Court invalidated a state statute requiring           who need the protection afforded by the
all children to attend public schools                 Constitution and it is the responsibility of
instead of private schools.              The          federal judges to ensure that protection.
Commonwealth, however, contends that
                                                             For the reasons set forth in this
because “[n]o student is compelled to
                                                      opinion, we will affirm the District Court’s
participate in the recitation of the Pledge
                                                      order.
of Allegiance or the National Anthem
since any student has the right to excuse
themselves based on religious conviction
or personal belief” and “parents retain the
right, if they so choose, to counsel their
children (a) to adopt a religious or personal
belief system which is inconsistent with
the recitation of the [Pledge or anthem]
and (b) to exercise their rights to opt out of
participating in the recitation of the
[Pledge or Anthem],” the Act does not
violate the Fourteenth Amendment.
Appellants’ Br. at 25-26. The District
Court, using reasoning similar to that it
used in its First Amendment rulings,
upheld the parents’ claim.
       In light of our holding that the Act
violates the First Amendment rights of
school students and private schools and is
therefore unconstitutional, we need not
reach Plaintiffs’ Fourteenth Amendment
claim and will therefore not address it
here.
             CONCLUSION
       It may be useful to note our belief
that most 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


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