Thomas, J., concurring in judgment
Moreover, this case is more troubling than Lee with respect to both kinds of "coercion." First, although students may feel "peer pressure" to attend their graduations, the pressure here is far less subtle: Students are actually compelled (that is, by law, and not merely "in a fair and real sense," id., at 586) to attend school. See also School Dist. of Abington Township v. Schempp, 374 U.S. 203, 223 (1963).
Analysis of the second form of "coercion" identified in Lee is somewhat more complicated. It is true that since this Court decided West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), States cannot compel (in the traditional sense) students to pledge their allegiance. Formally, then, dissenters can refuse to pledge, and this refusal would be clear to onlookers.[1] That is, students have a theoretical means of opting out of the exercise. But as Lee indicated: "Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity. . . . 505 U.S., at 593–594. On Lee's reasoning, Barnette's protection is illusory, for government officials can allow children to recite the Pledge and let peer pressure take its natural and predictable course. Further, even if we assume that sitting in respectful silence could be mistaken for assent to or participation in a graduation prayer, dissenting students graduating from high school are not "coerced" to pray. At most, they are "coerced" into possibly appearing to assent to the prayer. The "coercion" here, however, results in unwilling children actually pledging their allegiance.[2]
- ↑ Of course, as Lee and subsequent cases make clear, "'[l]aw reaches past formalism.'" Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 311 (2000) (quoting Lee v. Weisman, 505 U.S. 577, 595 (1992)).
- ↑ Surely the "coercion" to pledge (where failure to do so is immediately obvious to one's peers) is far greater than the "coercion" resulting from a student-initiated and student-led prayer at a high school football game. See Santa Fe Independent School Dist., supra.
