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Arizona Republicans support bill mandating Pledge of Allegiance in schools, setting up potential SCOTUS challenge


Left: Arizona State Rep. Barbara Parker (R-Mesa), via Twitter. Right: Students at Henderson’s Chandler Elementary School say the “Pledge of Allegiance” during a Veterans Day program, Friday, Nov. 6, 2015, in Corydon, Ky. (Mike Lawrence/The Gleaner via AP)

In a potential challenge to decades-old Supreme Court precedent, Republicans in the Arizona legislature have expressed unanimous support for a bill that would require schoolchildren to say the Pledge of Allegiance.

Rep. Barbara Parker (R-Mesa) introduced House Bill 2523 in January. It adds a recitation requirement to existing state law that already requires schools to set aside a specific time each day for students to say the pledge.

“Each student shall recite the Pledge of Allegiance to the United States during this time,” unless a parent requests that the student be excused, the law says.

Arizona state law also already requires school districts and charter schools to display a U.S. flag in every classroom.

The Arizona Senate Education Committee voted 4-3 along party lines on March 22, 2022, following a similar unanimous vote among Republicans in the Arizona House. It now heads to the full Senate for consideration. Arizona’s Democratic governor, Katie Hobbs, has said that she will not sign bills that lack bipartisan backing — a pledge of her own that may well doom H.B. 2523 to a veto.

The bill, if passed, sets up a potential Supreme Court showdown.

The nation’s highest court has previously considered the specific legal implications of compelling students to say the Pledge of Allegiance. In the 1943 ruling in West Virginia State Board of Education v. Barnette, a six-justice majority found that the First Amendment prohibits public schools from forcing students to salute the flag or say the Pledge of Allegiance.

The landmark Barnette ruling, written by Justice Robert Houghwout Jackson, called freedom from forced speech a “fixed star” among constitutional protections guaranteed to Americans.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” Jackson wrote.

In its ruling, the Barnette majority warned against mandated patriotism and considered the relationship between forced pledges and the dangers of nationalism:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.

“Those who begin coercive elimination of dissent soon find themselves exterminating dissenters,” wrote Jackson in an ominous warning against government-forced speech. “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

During a comment period before the Senate Education Committee, Elijah Watson, a member of the Keep Arizona Blue student coalition, told lawmakers about some of the legal problems raised by the bill’s requirements.

“Although it is true that this bill would not be forcing students to practice religion in a form of prayer, it would enforce compulsory speech and would require students to say ‘under God’ by mandating them to pledge allegiance to the flag without their choice or consent,” said Watson.

Watson also commented that the bill is unclear as to what kinds of penalties might apply if a student refuses to say the Pledge of Allegiance.

“Would the school district be fined?” he asked.

Rep. Judy Schwiebert (D-Phoenix), who is a former teacher, spoke at the hearing about the lack of need for forced patriotism in schools.

“It’s puzzling to me to hear that accusation that district schools are trying to undermine God and patriotism,” said Schwiebert. “My experience has been the complete opposite.”

During the same hearing, Parker explained that the impetus behind the bill is that parents “want schools where the pledge is said.” She also said that the Supreme Court’s ruling in Barnette is “completely obsolete.”

Precedent notwithstanding, the current Supreme Court has already upended decades of what was believed to be settled law, overturning Roe v. Wade in 2022 and eliminating the right to abortion care.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos