Law & Courts

Pledge Case to Go Before High Court

By Caroline Hendrie — October 22, 2003 6 min read

When Denise M. Phillips’ 4th graders pledge allegiance to the flag each morning at Joseph Sims Elementary School in Elk Grove, Calif., are they simply promising to be true to their country? Or are they also professing a faith in God?

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Read the accompanying story, “A Doctor, Lawyer, and Father Leads Battle Against Pledge.”

That emotionally loaded issue is one that the U.S. Supreme Court decided last week to tackle when it agreed to review a highly controversial lower-court decision holding that public schools should not lead students in reciting the Pledge of Allegiance because of its reference to “one nation under God.”

How the high court ends up resolving Elk Grove Unified School District v. Newdow (Case No. 02-1624)—with a ruling likely in the middle of the upcoming presidential-election year—is widely regarded as a matter of as much political as pedagogical importance. The case is seen in some quarters as another skirmish over religion and government that would be better waged somewhere other than in the public schools.

Timmy O'Conner joins in reciting the Pledge of Allegiance in August at Edgewater (Colo.) Elementary School. The Supreme Court will weigh the legality of such school-led recitations.

Timmy O’Conner joins in reciting the Pledge of Allegiance in August at Edgewater (Colo.) Elementary School. The Supreme Court will weigh the legality of such school- led recitations.
—Photograph by Glenn Asakawa/The Denver Post

Still, the Supreme Court’s Oct. 14 decision to take the case is being welcomed by some educators as an opportunity to clear up uncertainty over the pledge’s role in America’s classrooms, and to shed light on broader questions of just how finely schools need to draw the line between church and state.

“This needs to get resolved for the nation as a whole,” said David W. Gordon, the superintendent of the 55,000-student Elk Grove district.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled last year against the district in a lawsuit brought by Michael A. Newdow, a medical doctor and atheist whose 9-year-old daughter is enrolled in the suburban Sacramento, Calif., school system.

In a ruling met by a barrage of criticism, the appeals court held that teacher-led recitations of the pledge—which Congress amended in 1954 to include the words “under God"—violate the First Amendment’s prohibition on a government establishment of religion.

Now the Supreme Court will enter the fray.

“This ranks right up there with the school prayer decisions of the early 1960s in terms of the impact it will have on the body politic in America,” said Charles A. Haynes, a senior scholar at the First Amendment Center of the Freedom Forum, an Arlington, Va.-based foundation that studies constitutional issues.

‘Shadow of Uncertainty’

Dr. Newdow’s lawsuit, filed in 2000, drew little attention until a 9th Circuit court panel handed down a 2-1 ruling in June 2002 agreeing with him that the pledge was unconstitutional.

In February, the full 9th Circuit court declined to reconsider the decision, over the vigorous dissent of nine judges on the 24- member court. At the same time, the original panel majority took a step back from declaring the pledge itself unconstitutional and limited the ruling to recitations of the pledge led by public schools. (“Supreme Court Is Next Stop for Pledge Ban,” March 12, 2003.)

The Supreme Court will also focus its review on the schools. The same day that the court accepted Elk Grove’s appeal, it turned aside separate appeals by the Bush administration and Dr. Newdow, both of which had raised the question of whether the pledge itself is constitutional.

Instead, the justices limited their review to questions raised by the district: whether Dr. Newdow had the proper legal standing to challenge the district’s policy of requiring teachers to lead the pledge, and whether that policy itself passes constitutional muster. Among the factors complicating the question of Dr. Newdow’s standing have been his shifting child-custody arrangements, and opposition by his daughter’s mother to his complaints about the pledge.

In an unusual development, the high court announced that Justice Antonin Scalia did not take part in their deliberations on the case, apparently as a result of public comments he made earlier this year about the 9th Circuit court decision.

Dr. Newdow had asked Justice Scalia to recuse himself, citing a Fredericksburg, Va., speech in which the justice pointed to the ruling as an overzealous attempt to remove references to God from public life.

Is Pledge Religious?

According to the Denver-based Education Commission of the States, 35 states require schools to include recitation of the pledge during the school day, and another five encourage schools to do so. And in many states, federal courts have not ruled on the practice’s constitutionality, according to a friend-of-the-court brief filed by the school boards’ associations in 10 states urging the high court to take the case.

The 9th Circuit covers nine Western states that include some 9.6 million public school students. Schools within the circuit may still recite the pledge because the appeals court delayed the effect of its ruling.

In its appeal to the high court, the Elk Grove district argued that the 9th Circuit panel was off-base in seeing the pledge as a profession of religious belief.

The district noted that in the Supreme Court’s landmark 1943 ruling in West Virginia State Board of Education v. Barnette, students’ rights were not found to be violated by simply hearing others recite the pledge. The Barnette decision established that schools may not compel students to say the pledge, however.

“Our community, as well as numerous people from across the country, have expressed their support to us for defending the pledge,” Jeanette Billingsly, the president of the Elk Grove Unified school board, said last week. “They understand it is important for our students to learn and recite the pledge every day as a patriotic exercise.”

Others expressed support for Dr. Newdow’s position.

“Requiring a daily religious-loyalty test for schoolchildren is simply wrong,” said Barry W. Lynn, the executive director of the Washington-based advocacy group Americans United for Separation of Church and State.

The Bush administration had argued in its appeal that the pledge’s reference to God merely recognizes the nation’s religious heritage in a manner that falls far short of the government establishment of religion barred by the First Amendment.

Dr. Newdow said in an interview last week that he views such invocations of history as “a bogus excuse” for violating the First Amendment. (See accompanying story.)

The Supreme Court could end up disposing of the case, though, without a momentous ruling on the pledge. If the court found that Dr. Newdow lacked proper standing, it could vacate the 9th Circuit’s decision and thus disperse the legal cloud over school-led recitations of the pledge.

The possibility also exists of a 4-4 deadlock on either the procedural or constitutional issues because of Justice Scalia’s recusal. That would affirm the 9th Circuit decision but not set a national precedent.

If the court sides with Dr. Newdow, “then I think there will be a tremendous uproar in the nation, and I think we could fairly predict a significant backlash,” Mr. Haynes of the First Amendment Center said.

In the meantime, Ms. Phillips says her pupils at Joseph Sims Elementary seem largely unconcerned about the national debate swirling around their district. In her 18 years of teaching in Elk Grove, she said, she has had only two children refrain from saying the pledge. They were both Jehovah’s Witnesses, a Christian group whose members mounted legal challenges to the pledge in the 1930s and ‘40s before it included “under God.”

Still, she said, her principal had discussed the pledge with teachers and worked with students to help them decipher its meaning.

After having grown up saying the pledge each day in Sacramento public schools, Ms. Phillips said she makes an effort to contemplate its meaning as she now recites it with her pupils.

“I do think about it,” she said, “just because I try not to recite something by rote.”


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