Published September 15, 2009
It's a new school year, but an old fight is brewing in American classrooms. Teachers and administrators around the country are scratching their heads once again over the Pledge of Allegiance.
The courts have consistently ruled that students have the right not to recite the pledge in public schools. But now some First Amendment advocates are taking it one step further, arguing that the law compels educators to inform kids at the beginning of school that the decision is entirely up to them.
They're advocating a "Miranda warning" for the Pledge -- an administrative notice to students that they have the right to remain silent.
“The Pledge of Allegiance creates a constitutional problem. You have to tell students they can opt out,” the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, told FOX News.
New Mexico dealt with this question last month when its education secretary upheld that students are permitted to opt out of the Pledge, but rejected an ACLU-backed amendment that would require schools to inform parents and students that they have the option.
In Florida, schools have tried to resolve uncertainty by announcing a new policy — students don't have to participate, as long as they have a letter from Mom and Dad.
These are just the latest in a litany of challenges to the Pledge and its place in the classroom.
Americans have recited the tribute to the stars and stripes since the oath was written by Francis Bellamy, a Baptist minister, in 1892. But Bellamy's pledge did not include the words "under God," which were added by Congress in 1954 during the McCarthy era, when Cold War tensions with the Soviet Union — an atheist nation — were high in the United States.
Thirty-six states now have laws requiring that the Pledge of Allegiance be recited daily in public schools. But the oath as it's written does not sit well with some Americans.
“The Pledge doesn’t even state the truth. We are not one nation under God," Lynn said. "I don’t think we should lie to students, and there’s no way we can require them to say it.”
But supporters of the Pledge insist that the words are both constitutional and an important part of our national heritage.
“There has been a recurring effort by the ACLU and others to try to stop the Pledge of Allegiance from being said. The fact of the matter is that the American people like the Pledge of Allegiance, they like it the way it is,” Phyllis Schlafly, founder of the Eagle Forum, told FOXNews.com.
“The teachers are government employees, their paychecks are paid by the taxpayers, and the American people support the Pledge. I’m with the American people,” Schlafly said.
The majority of Americans do, in fact, overwhelmingly support the Pledge of Allegiance in its current form. A FOX News/Opinion Dynamics Poll from November of 2005 showed that 90 percent of Americans approve of the oath. Only 7 percent of people polled said they would change the language of the Pledge, while three percent of Americans were undecided.
The Pledge's popularity aside, the Supreme Court ruled in 1943 that mandating a student to participate in the oath was an unconstitutional violation of the First Amendment right to free speech.
Now the ACLU and other critics of the Pledge are taking the dispute a step further — arguing that students, whether they do or don't support the oath, should be told up front that they are not required to recite the words.
They lost the first round in New Mexico last month, when state Education Secretary Veronica Garcia ruled not to change state policy — which requires that the Pledge be recited daily — to inform students of their right to opt out.
"The department believes that the existing rule and practice in schools respects the rights of all students," Garcia said a statement. "Any issues related to rights of students will be handled at the local school district level," the statement read.
New Mexico ACLU Director Peter Simonson protested the ruling, telling the Associated Press, "I think it's a cop-out not to affirmatively state that students have a First Amendment right not to participate in the Pledge." Simonson declined to elaborate when contacted by FOXNews.com.
In Florida, ACLU attorney Randall Marshall successfully argued a case before the 11th Circuit Court of Appeals in defense of high school student, Cameron Frazier, who abstained from reciting the Pledge because of “personal political beliefs” and, according to the lawsuit, was “singled out and humiliated” by his teacher.
“We made the case that students must be informed that they are not required to recite the Pledge of Allegiance,” Marshall told FOXNews.com.
"It’s not a challenge to the content of the Pledge. Only that students be informed that they are not required to recite it."