Law & Courts

Appeals Court Says Pledge Foe Has Right to Sue

By Mark Walsh — December 11, 2002 1 min read
  • Save to favorites
  • Print

The same federal appellate panel that ruled against the Pledge of Allegiance last summer concluded last week that the father who challenged the pledge on behalf of his daughter, even though he does not have custody of the child, nonetheless has the right to press his case.

The panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, caused a firestorm in June by ruling 2-1 that the pledge’s inclusion of the words “under God” was an unconstitutional government establishment of religion. The court delayed the effect of its ruling to allow for appeals. But if the decision ever does take effect, public schools in the nine states in the 9th Circuit will be barred from leading the pledge.

Dr. Michael A. Newdow, a California physician who is an atheist, challenged the pledge on behalf of his daughter, who has not been named in court papers. The defendants are the 52,500- student Elk Grove Unified School District, the state of California, the U.S. Congress, and President Bush.

After the 9th Circuit’s June 26 ruling, the 8- year-old girl’s mother, Sandra Banning, came forward to argue that her daughter had no religious objections to reciting the pledge at school. Dr. Newdow and Ms. Banning have never been married, and they had an informal custody arrangement for their daughter until February, when a state court awarded Ms. Banning sole legal custody.

In September, a California Superior Court judge barred Dr. Newdow from naming his daughter in the pledge lawsuit.

Full Court Is Next

The original 9th Circuit panel’s Dec. 4 ruling stated unanimously that Dr. Newdow has standing even as a noncustodial parent to challenge his daughter’s exposure to what he views as unconstitutional government conduct.

“We hold that Banning has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action,” said the ruling by U.S. Circuit Judge Alfred T. Goodwin. He wrote the original opinion against the constitutionality of the pledge as currently worded and reaffirmed that stance last week.

U.S. Circuit Judge Ferdinand F. Fernandez, who dissented from the ruling against the pledge, wrote a concurrence last week to emphasize that he agreed with his fellow panel members only on the issue of legal standing.

The next step is likely to be a rehearing on some or all of the issues involved before a larger panel of 9th Circuit judges.

Related Tags:

A version of this article appeared in the December 11, 2002 edition of Education Week as Appeals Court Says Pledge Foe Has Right to Sue

Events

Teaching Profession K-12 Essentials Forum New Insights Into the Teaching Profession
Join this free virtual event to get exclusive insights from Education Week's State of Teaching project.
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.
Mathematics K-12 Essentials Forum Helping Students Succeed in Math

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Federal Appeals Court Upholds Block on Louisiana Ten Commandments Display Law
Louisiana's law requiring the Ten Commandments in every classroom likely violates the First Amendment, a federal appeals court ruled.
3 min read
Louisiana Gov. Jeff Landry speaks alongside Louisiana Attorney General Liz Murrill during a press conference regarding the Ten Commandments in schools Monday, Aug. 5, 2024, in Baton Rouge, La. Murrill announced on Monday that she is filing a brief in federal court asking a judge to dismiss a lawsuit seeking to overturn the state’s new law requiring that the Ten Commandments be displayed in every public school classroom.
Louisiana Gov. Jeff Landry speaks alongside Louisiana Attorney General Liz Murrill during a press conference on a law requiring the Ten Commandments be displayed in schools on Aug. 5, 2024, in Baton Rouge, La. A federal appeals court on June 20 upheld an injunction blocking the law from taking effect.
Hilary Scheinuk/The Advocate via AP
Law & Courts Court Again Tells Trump Admin. to Restore Laid-Off Ed. Dept. Staffers
The judge was ruling in a case that challenged staff cuts and office closures at the Education Department's office for civil rights
5 min read
Demonstrators gather to protest outside of the offices of the U.S. Department of Education in Washington on March 21, 2025 after President Trump signed an executive order to shut down the government agency.
Demonstrators gather to protest outside of the offices of the U.S. Department of Education in Washington on March 21, 2025, after President Donald Trump signed an executive order aiming to shut down the government agency. A federal judge on Wednesday ordered the Trump administration to restore staffers to the department's office for civil rights, which enforces anti-discrimination laws in the nation's schools.
Bryan Dozier/NurPhoto via AP
Law & Courts Supreme Court Ruling May Redefine Transgender Rights in Schools
The U.S. Supreme Court ruled in a case about puberty blockers and hormone treatments that holds implications for transgender students.
6 min read
Nate, 14, left, and Bird, 9, right, whose parents asked not to use their last names, hold signs and transgender pride flags as supporters of transgender rights rally by the Supreme Court on Dec. 4, 2024, in Washington.
Nate, 14, left, and Bird, 9, right, whose parents asked not to use their last names, hold signs and transgender pride flags as supporters of transgender rights rally by the Supreme Court on Dec. 4, 2024, in Washington. The high court on June 18, 2025, upheld a Tennessee law banning certain gender-transition treatments for minors.
Jacquelyn Martin/AP
Law & Courts Supreme Court Decision Lets Students Sue Schools More Easily for Disability Bias
The justices ruled unanimously that students with disabilities need not meet a more stringent standard when suing under two federal laws.
5 min read
The Tharpe family, pictured outside the U.S. Supreme Court in Washington, D.C., on April 28, 2025.
The Tharpe family, pictured outside the U.S. Supreme Court in Washington, D.C., on April 28, 2025.
Mark Walsh/Education Week