(CN) - The full 11th Circuit declined to reconsider its decision that Florida can compel students to recite the Pledge of Allegiance against their personal beliefs, unless their parents write a note excusing them from participation.
Judge Barkett dissented, claiming the three-judge panel's ruling "directly contravenes precedent that has been firmly entrenched for over 65 years."
The panel had upheld a Florida statute requiring all students, including the 17-year-old plaintiff, to recite the pledge unless they have written parental consent to bypass the tradition.
"Such a 'permission' requirement is patently unconstitutional," Barkett wrote, "and this opinion puts us at odds not only with direct Supreme Court precedent, but with the decisions of other circuits addressing similar statutes."
Barkett cited the high court's decision in West Virginia State Board of Education v. Barnette, which held that the state does not have the power to force minor students to recite the pledge to the flag.
"To avoid the dictates of Barnette, the panel mischaracterizes the issue as one involving the resolution of conflicting constitutional rights between parents and children, Barkett added. "This recharacterization is wholly unpersuasive, as it is undisputed that no such conflict exists in this case."
The state had argued that parents have a fundamental constitutional right to control the upbringing of their minor children and decide whether a child should recite the pledge.
In its July 2008 ruling, the panel agreed. "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."
Barkett responded: "This is not a case pitting the rights of parents against children with the state as mediator, but rather a prototypical example of the assertion of state power against the rights of their citizens - in this case, those of students."
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