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Submitting a form to opt out. Where have we heard that before?

Ken Paxton likes the Second Amendment. I’m not sure he likes the First Amendment, at least more than getting re-elected.

The attorney general of Texas told a federal appeals court this summer that “the right to academic freedom, if it exists, belongs to the institution, not the individual professor.” He’s defending the University of Texas against claims by three professors that the public university’s interpretation of the state campus-carry law infringes on their academic freedom by chilling speech in their classes.

That’s debatable. What’s not debatable, in my view, is punishing a student for refusing to stand for the Pledge of Allegiance.

Paxton is trampling on the constitutional rights of Texas schooldchildren, validated by a 49-year-old Supreme Court ruling, by arguing that their First Amendment rights end at the schoolhouse gate.

The Houston Chronicle reports that Paxton is putting state over federal law:

The filing references a Texas law allowing parents to submit a letter stating that they do not want their child to stand for the pledge. Standing is not optional, however, for students whose parents have not filed the letter, according to the court papers.

Paxton is showing his patriotic bona fides at the height of his re-election campaign by filing a motion to intervene in a federal lawsuit against the Cypress-Fairbanks Independent School District by the family of a student, India Landry.

She was expelled from her high school after repeatedly refusing to stand. A federal judge approved the lawsuit to move forward in July, the Chronicle reports:

The lawsuit accuses the principal, vice principal, secretary and two teachers of violating Landry’s rights to free speech, equal protection and due process and of singling her out because she was black.

Teachers sent Landry to the office several times for sitting during the pledge. When Principal Martha Strother saw Landry sitting, she told her to stand. When Landry did not, Strother expelled her and ordered her to leave the premises or said she would summon police.

The AG’s statement on the intervention in the lawsuit dresses up a naked political ploy in the garb of “parental rights,” even though Landry’s mother supports her protest:

Texas is among 26 states with similar statutes that make reciting the Pledge of Allegiance a regular part of every school day. … On written request from a student’s parent of guardian, a Texas public or charter school can excuse a child from participating in the pledge. The U.S. Court of Appeals for the 11th Circuit has held that doing so is a legitimate way to protect parents’ interest in determining how their children will be educated on civic values and does not violate the students’ First Amendment rights.

I stand strongly with India Landry. The Texas AG will likely lose. It’s absurd to expel a high school student for not standing for the pledge of allegiance, especially given this fact pattern. https://t.co/OF7RsFx3KL NB @TheFIREorg #indialandry

— Nicholas A. Christakis (@NAChristakis) September 26, 2018

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That 2008 ruling by a three-judge panel struck down part of a similar Florida law that required “civilians” to stand for the pledge, but upheld the rest of the law applying to students against an “overbreadth” challenge.

Even as it said students’ right to stay seated during the pledge is “well established,” the panel said the most relevant Supreme Court precedent, 1943’s Barnette, doesn’t apply because the Florida law is a “parental-rights statute” with a prescribed opt-out process:

Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not. … The State, in restricting the student’s freedom of speech, advances the protection of the constitutional rights of parents:  an interest which the State may lawfully protect.

This ruling doesn’t even mention a more recent Supreme Court precedent that upholds the constitutional rights of students, even while at school and regardless of what their parents think: 1969’s Tinker. In that case, the Supreme Court upheld the right of students to wear anti-Vietnam War armbands in school.

It had nothing to do with parental rights. It had everything to do with whether the expression disrupted the learning environment. As the syllabus from the case read:

In wearing armbands, the petitioners were quiet and passive. They were not disruptive, and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. …

A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.

It’s BS to claim that sitting during the pledge could cause “substantial interference with school discipline or the rights of others.”

For some reason the Supreme Court refused to review this flatly unconstitutional ruling at the time, but it may have reason to take a look at the Texas case, should the school district prevail.

The primary dispute in the Obamacare contraception-mandate cases was whether religious nonprofits had to submit a form to their insurer or the federal government to opt out of any involvement with providing contraceptives, on the basis of their religious beliefs.

The Supreme Court sidestepped the issue after further briefing from the parties, in which they agreed that the nonprofits’ employees could get contraceptive coverage from their insurers “without any such notice” from the nonprofits. It remanded the cases to their respective appeals courts.

I’m not a lawyer, but this seems functionally indistinguishable from the Texas case, where state law requires parents to submit a form to opt out their child from compelled expression.

Read the Chronicle story and Paxton’s statement.

MORE: Ken Paxton says faculty don’t have academic freedom

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