Law & Courts

New Challenge to Pledge in Schools Filed

By Caroline Hendrie — January 11, 2005 4 min read
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Here we go again.

That was the feeling in education law circles last week as word got around that the California atheist who argued his own case against the Pledge of Allegiance before the U.S. Supreme Court last year had filed the first of what he said would be a string of similar lawsuits around the country.

Starting with the federal suit Michael A. Newdow filed in his hometown of Sacramento on Jan. 3, the cases will be aimed at stripping the words “under God” from the patriotic oath recited in public schools nationwide.

“I’m not surprised at all,” said Julie Underwood, the general counsel of the National School Boards Association. “We understood his strategy since the day the decision came out.”

Michael A. Newdow talks on a radio show last June after the U.S. Supreme Court threw out his challenge to the Pledge of Allegiance in schools. He filed a new suit last week.

In its ruling dismissing his case last June, the high court unanimously agreed that Dr. Newdow lacked legal standing because of custodial issues involving his daughter and her mother. At the time, he vowed to be back with other plaintiffs in the hope that the high court would eventually decide the merits of his case. (“Pledge Stays Intact as Justices Dismiss Atheist’s Challenge,” June 23, 2004.)

Dr. Newdow, a physician with a law degree, lists himself as the lead plaintiff in the new case, which was filed against five California school districts, the state, and the U.S. government. But he also brings the suit on behalf of four other parents and four students—all of whom are unnamed in court papers to protect their privacy.

Filed in U.S. District Court in Sacramento, the new suit recycles many of the church-state claims central to Elk Grove Unified School District v. Newdow, last year’s Supreme Court case involving the 58,000-student Elk Grove district in suburban Sacramento. That highly publicized showdown followed a controversial ruling in 2002 by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that struck down the pledge.

“When teachers lead their students in a daily recitation that states in part that we are ‘one nation under God,’ they endorse religious doctrine and inculcate a belief that not only is there a God, but that we are one nation ‘under’ that entity,” the new suit says. “This is unconstitutional.”

Like the earlier case, the new suit insists that simply letting students opt out of the pledge—as a 1943 Supreme Court ruling made clear they must be allowed to do—does not protect their rights.

‘Outsider’ Status Decried

“No one—much less impressionable children in the public schools—should ever be forced to choose between conforming to the state-endorsed religious belief or appearing as unpatriotic, political (and religious) ‘outsiders,’ ” the suit says.

Terence J. Cassidy, a lawyer representing the Sacramento-area school districts, questioned whether that argument would fly.

“We still believe that the plaintiffs will have significant difficulty in overcoming the fact that recitation of the pledge with the words ‘under God’ is voluntary,” he said.

The new suit asserts that the pledge itself—whether in schools or elsewhere—has been unconstitutional since 1954, when Congress added “under God” to it amid Cold War tensions with the communist Soviet Union.

The first suit made that claim, too, and the 9th Circuit court panel initially agreed. But the panel later amended its decision to center on the pledge’s constitutionality in schools, a focus that remained once the case got to the Supreme Court.

Calling Congress “the bad apple,” Dr. Newdow is asking the court to order it to change the pledge back to its pre-1954 version.

Although Congress was dismissed as a defendant from the first suit, both the House and Senate have made their feelings on the topic known. Besides passing measures decrying the 2002 appellate ruling, both chambers submitted papers in the Supreme Court defending the pledge.

And last September, the Republican-led House passed a bill over the objections of many Democrats that would have stripped the federal courts of their jurisdiction over challenges to the pledge. The Senate did not take up the measure and thus it died in the last Congress.

The Bush administration vigorously defended the pledge in last year’s case, presenting oral arguments before the high court.

Joining Dr. Newdow as plaintiffs in the new case are a 7th grader in the Elk Grove school system, a 10th grader in the Lincoln Unified School District near Stockton, Calif., a 3rd grader in the Elverta schools in suburban Sacramento, and a kindergartner in the nearby Rio Linda schools, as well as those children’s parents.

‘Got to Win One’

The suit is against all those school systems, as well as the Sacramento city district, where Dr. Newdow lives and pays taxes.

All the parents are either atheists or agnostics, while two of the older children are identified as atheists, and the third as a pantheist. The kindergartner’s religious views are not mentioned.

The new suit maintains that the three older children have been harassed or ostracized for refraining from the pledge, and that the adults’ “fundamental constitutional rights of privacy and parenthood” have been violated.

In the first case, the fact that the mother of Dr. Newdow’s daughter is a devout Christian who worships with their child regularly was cited in the Supreme Court’s majority opinion as undermining his claims that he was harmed by the girl’s exposure to the pledge in class.

Dr. Newdow said last week that he planned to bring similar suits around the country, starting with Texas next month and followed by Florida.

The Rev. Barry W. Lynn, the president of Americans United for Separation of Church and State, said the Washington-based organization supported Dr. Newdow’s position but disagreed that multiple cases are needed, because the California case stands a solid chance.

But Dr. Newdow said he wanted to improve his odds of scoring a victory that could propel him back to the nation’s highest court.

“I’ve got to win one,” he said.

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A version of this article appeared in the January 12, 2005 edition of Education Week as New Challenge to Pledge in Schools Filed

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