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Abstract: In Frazier v. Winn, the U.S. Court of Appeals for the Eleventh Circuit upheld as constitutional a Pledge of Allegiance statute that requires students to obtain parental permission prior to refraining from Pledge recitation in school. The decision raises controversial issues regarding the current status of the fundamental right to free speech possessed by students, espoused by the U.S. Supreme Court over sixty years ago in West Virginia State Board of Education v. Barnette. Particularly, where do the First Amendment rights of students stand in relation to the established rights of both parents and educational institutions? For instance, when parents and students disagree, whose rights should schools protect and promote? In light of the debate and confusion caused by recent student speech and Pledge of Allegiance cases, this Note confronts the tension among public educational institutions, parents, and students. Specifically, this Note proposes that when determining the validity of Pledge statutes in the future, the constitutional rights of students should be determinative, regardless of the opinion or rights of their parents.
Introduction
On October 5, 2009, the U.S. Supreme Court denied a petition for writ of certiorari in Frazier v. Winn, a student speech case decided by the U.S. Court of Appeals for the Eleventh Circuit.1 The case arose out of an incident on December 8, 2005, when Cameron Frazier, an eleventhgrade student at Boynton Beach Community High School, in Palm Beach County School District, refused to stand and recite the Pledge of Allegiance (the "Pledge") in class.2 Florida's Pledge of Allegiance statute (the "Pledge statute"), which applies to students from kindergarten to twelfth grade, states in pertinent part:
The pledge of allegiance to the flag . . . shall be rendered by students . . . . The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge.3
Frazier's teacher informed him that, because he did not have written permission from his parents...