the Circle School v. THE HONORABLE GERALD J. PAPPERT, Attorney General for the Commonwealth of Pennsylvania

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-3285
THE CIRCLE SCHOOL; JAMES
RIETMULDER; MAXW ELL S.
MISHKIN, by His Parents and Next
Friends Jeremy and Barbara Mishkin;
PHYLLIS HOCHBERG; PROJECT
LEARN, a School Community;
UPATTINAS SCHOOL AND
RESOURCE CENTER; THE SCHOOL
IN ROSE VALLEY; THE CREFELD
SCHOOL
v.
THE HONORABLE GERALD J.
PAPPERT*, Attorney General for the
Commonwealth of Pennsylvania; THE
HONORABLE VICKI PHILLIPS,
Secretary of Education Designee for the
Commonwealth of Pennsylvania; JANE
M. ALLIS, Member, State Board of
Private Academic Schools; DENISE
BIONDO, Member, State Board of
Private Academic Schools; BRYCE
HATCH, Member, State Board of
Private Academic Schools; MARQUITA
JONES, Member, State Board of Private
Academic Schools; CAROLYN
PASANEK, Member, State Board of
Private Academic Schools; ROBERTA
L. SCHOMBURG, DR., Member, State
Board of Private Academic Schools;
KIM SM ITH, Member, State Board of
Private Academic Schools; TED
WACHTEL, Member, State Board of
Private Academic Schools
Vicki Phillips; Jane M.
Allis; Denise Biondo; Bryce
Hatch; Marquita Jones;
C ar ol yn P a sa ne k; D r.
Roberta L. Schomburg; Kim
Smith; Ted Wachtel,
Appellants
*(Amended per Court Order
dated 3/11/04)
On Appeal from the United States
District Court for the Eastern District of
Pennsylvania
(D.C. Civil No. 03-cv-00763)
District Judge: Hon. Robert F. Kelly
Argued March 9, 2004
Before: SLOVITER and NYGAARD,
Circuit Judges, and OBERDORFER,
District Judge*
(Filed August 19, 2004)
Gerald J. Pappert
Attorney General
Howard G. Hopkirk (Argued)
Deputy Attorney General
* Hon. Louis F. Oberdorfer, Senior
Judge, United States District Court for
the District of Columbia, sitting by
designation.

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Amanda L. Smith
Deputy Attorney General
Calvin R. Koons
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Office of Attorney General
Appellate Litigation Section
Harrisburg, PA 17120
Attorneys for Appellants
Joyce S. Meyers
Michael K. Twersky (Argued)
Robert P. Blood
Montgomery, McCracken, Walker &
Rhoads, LLP
Philadelphia, PA 19109
Attorneys for Appellees
Stefan Presser
American Civil Liberties Foundation of
Pennsylvania
Philadelphia, PA 19107
Attorney for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Pennsylvania Act 157 of 2002
(“Act 157” or the “Act”), codified as 24
Pa. Cons. Stat. Ann. § 7-771(c), mandates
that all public, private, and parochial
schools within the Commonwealth display
the national flag in every classroom and
provide for the recitation of the Pledge of
Allegiance or the national anthem at the
beginning of each school day. Like similar
statutes in other states, Act 157 allows
private and parochial schools to opt out of
its requirements on religious grounds, and
gives students the option of refraining
from participating in the recitation and
saluting the national flag on religious or
personal grounds. § 7-771(c)(1)-(2).1
How ever, it also requires school
supervising officials to notify, in writing,
parents or guardians of those students who
have declined to join in the recitation or
salute the flag. § 7-771(c)(1).
We hold that the parental
notification provision of the Act violates
the school students’ First Amendment
right to free speech and is therefore
unconstitutional. We also hold that certain
of the Act’s remaining provisions violate
private schools’ First Amendment right to
free expressive association. We will
therefore affirm the District Court’s
judgment.
BACKGROUND
24 Pa. Cons. Stat. Ann. § 7-771(c)
1 Although the plain language of
Section 7-771(c)(1) only allows students
to opt out of reciting the Pledge of
Allegiance and saluting the flag, the
District Court held that the phrase
“saluting the flag” also encompasses the
singing of the national anthem. The
Circle School v. Phillips, 270 F. Supp. 2d
616, 622 (E.D. Pa. 2003). Neither party
challenges that holding here.

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

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

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

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

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

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

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

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

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

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

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

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the Sisters, 268 U.S. 510 (1925), where the
Court invalidated a state statute requiring
all children to attend public schools
instead of private schools. The
Commonwealth, however, contends that
because “[n]o student is compelled to
participate in the recitation of the Pledge
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
march to their own drummers. It is they
who need the protection afforded by the
Constitution and it is the responsibility of
federal judges to ensure that protection.
For the reasons set forth in this
opinion, we will affirm the District Court’s
order.

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