As of August 22, 2016, the Thomas More Law Center has still not updated its website story about the “Mexican Flag Pledge Case.” How long will it take for this non-profit advocacy group to correct its errors?
The headline on their website reads: IN ONE TEXAS SCHOOL, STUDENTS HAVE THE RIGHT TO OPT OUT OF RECITING THE AMERICAN PLEDGE OF ALLEGIANCE….BUT NOT THE MEXICAN PLEDGE.
Now that’s a story sure to get the attention Fox News and demagogues like Glenn Beck. And it did. But the story is nowhere close to the truth.
The story claims that Brenda Brinsdon, then a sophomore at a McAllen ISD high school, was punished for refusing to recite the Mexican Pledge of Allegiance.
Wrong. According to the 5th Circuit, the student was not required to fulfill this class assignment. After she objected to this assignment in her Spanish class, she was given an alternative assignment. Nor was she punished for the stance she took.
It is true that she was removed from the Spanish class and completed the class in an administrative office. This happened over a month after her refusal to carry out the assigned task and the court found that “there is no evidence to support the claim” that she was removed because of her refusal. She got credit for Spanish III and later graduated.
So, why was she removed from class? She and her father spoke to Fox News and got their story broadcast on The Blaze, Beck’s TV show. This caused a commotion. Here’s how the 5th Circuit put it:
The record shows McAllen High received hundreds of communications from anonymous people, some of which contained threats of harm. Indeed, Cavazos [the principal] testified that after Brinsdon’s “Fox channel videotaping, I explained to her that…the situation had created a hostile environment for the school and for the teacher…and the teacher and myself were receiving hate mails and calls and feared for our safety…[and] that the student[s] she videotaped felt betrayed…..”
“The students she videotaped”???? That’s another little detail that the Thomas More Law Center omitted from its story. Brenda secretly recorded classroom activities, including individual students, and then shared it with Beck, who broadcast it on his show.
Of course students have free speech rights, and that includes the right to speak to the media. But schools can take appropriate action to prevent or respond to a reasonable forecast of disruption. Did this situation cause disruption? The 5th Circuit:
The student speech was published to the national audience that Fox News and The Blaze [Glenn Beck TV Show] command. Santos [Spanish teacher] was identified by name and her face was shown in the video. Even if the resulting disruptions were in fact insubstantial, a “fact” we do not find, Brinsdon’s publication of her complaints to a national audience were demonstrable factors leading to the school’s reasonable forecast of sufficient disruption. Indeed, the threats eventually caused police to maintain a patrol of the school. Santos was escorted to and from her car every day. She was forced to take time off from work.
We hope you noticed in the above recounting of the case that all of this happened in Spanish class. It was a one-time assignment—memorize and recite the Mexican Pledge in Spanish. The kids also sang the Mexican National Anthem—in Spanish. They did this one time—not every day. In fact, as far as a daily practice, all students in the school were required to recite the Pledge to the American Flag, and to the Texas Flag—but not the Mexican Flag.
The lawsuit makes much of the fact that students could opt out of the Pledge to the American Flag. They could object, and if they did, they would be excused from the requirement. This is based on what the lawyers call “clearly established” law—specifically a U.S. Supreme Court case from 1943—West Virginia State Board of Education v. Barnette. So the suit argues that kids should not be required to recite the pledge to the Mexican Flag.
This is a simplistic argument that ignores context. Glenn Beck would find it compelling. The 5th Circuit did not. The Court put it this way:
Clearly, West Virginia sought to have students each day make an operative pledge of allegiance, that is, a statement of actual belief. (Emphasis in the original).
As for the pledge in Ms. Santos’s class:
There is, though, no evidence in this case of a purpose to foster Mexican nationalism. Instead, the only evidence is that students were, as part of a cultural and educational exercise, to recite a pledge of loyalty to a foreign flag and country. Santos testified and the class syllabus states that the pledge was educational and the punishment for noncompliance was a failing grade. Finally, the assignment was a singular event; it was not repeated on a daily basis. In summary, the compelled speech at issue is a pledge that did not seek to compel the speaker’s affirmative belief.
The court concluded that neither the district nor the principal nor the teacher should be held liable for any legal violation here. Good. But what a shame that a teacher has to endure the stress and expense of a lawsuit for giving her students an assignment that was completely consistent with the Texas Essential Knowledge and Skills for languages other than English—learning about the culture and practices of people from another country.
The case is Brinsdon v. McAllen ISD, decided by the 5th Circuit on August 9, 2016.
DAWG BONE: DON’T TRUST GLENN BECK’S LEGAL ANALYSIS.
File this one under: FREE SPEECH