Supreme Court likely to take on pledge case
3/18/03 -- Students in the nine Western states covered by the 9th U.S. Circuit Court of Appeals may continue to say the Pledge of Allegiance in class, pending a decision by the U.S. Supreme Court on whether it will hear the case.
On Feb. 28, the appeals court reaffirmed an earlier ruling finding the use of the pledge in public school classrooms unconstitutional.
Then on March 4, appeals court Judge Alfred T. Goodwin issued a 90-day stay in response to a request by the Elk Grove, Calif., school district. If attorneys for the district, located near Sacramento, file a petition with the U.S. Supreme Court within the 90-day period, the stay will be extended until the Supreme Court acts.
Elk Grove Superintendent David W. Gordon says the district will ask the Supreme Court to review the case. He says, "Children in my district and within the jurisdiction of the 9th Circuit Court should not be denied a patriotic exercise available to students in the rest of this country."
If the stay had not been issued, public schools in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington -- the states covered by the 9th Circuit -- would have been barred from reciting the pledge as currently worded.
The case was first filed in 2000 when Michael Newdow, the father of a child in an Elk Grove elementary school, sued the district. Newdow, an atheist, charged the recital of the pledge with the words "under God" violates the First Amendment.
A three-judge panel of the 9th Circuit Appeals Court ruled 2-1 on the issue last June, agreeing with Newdow's contention that when the pledge is recited in a public school setting, it is inherently coercive and violates the constitutional ban on government establishment of religion.
That ruling led to a firestorm of criticism. President Bush, the Justice Department, the U.S. Congress, and California Gov. Gray Davis asked the 9th Circuit to reconsider its ruling.
On Feb. 28, the full 9th Circuit Appeals Court ruled 24-9 to turn down a request from the defendants to rehear the case, but narrowed the scope of its earlier decision. The amended ruling omits language that would have invalidated the 1954 act of Congress that added the words "under God" to the pledge.
The decision calls Elk Grove's policy of having teachers lead students in reciting the pledge unconstitutional. Equating the practice with prayer in schools, the decision says the district "impermissibly coerces a religious act."
Elk Grove school leaders disagree and remain committed to the pledge. Board President Jeanette Billingsly says, "We believe the Pledge of Allegiance embodies the spirit of America, and in our district, we intend to support the constitutionality of its expression as written."
A statement by the district says: "We believe the phrase 'under God' reflects the history and heritage of our country and it does not push religion on children, as the lawsuit contends. We agree with the dissenting judges that it should not be considered a religious act."
The Senate passed a resolution March 4 supporting the Pledge of Allegiance and condemning the 9th Circuit decision.
A statement issued by U.S. Attorney General John D. Ashcroft Feb. 28 says: "The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge."
Ron Wenkart, general counsel for the Orange County (Calif.) Department of Education, who had been following the pledge case closely, says he is relieved that the 9th Circuit issued a stay.
"Had they not issued a stay, it would have forced districts [in the nine states] to remove the words 'under God' from the pledge, and then we'd have two different pledges in different parts of the country," Wenkart says.
Some of those districts might have replaced the pledge with patriotic songs, such as "America the Beautiful" and "My Country 'Tis of Thee."
Legal experts predict the Supreme Court will take the case because the 9th Circuit ruling conflicts with a 1992 decision by the 7th U.S. Circuit Court. That decision found the recital of the pledge in public elementary schools in Illinois is not coercive because participation is voluntary.
NSBA General Counsel Julie Underwood notes "the Supreme Court has been strong on not wanting schools to endorse religious viewpoints." But in this case, she says, "the Court might view the pledge as ceremonial, rather than a religious exercise."
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| Reproduced with permission from the Mar. 18, 2003, issue of School Board News. Copyright © 2003, National School Boards Association. Opinions expressed in this newspaper do not necessarily reflect positions of NSBA. This article may be printed out and photocopied for individual or educational use, provided this copyright notice appears on each copy. This article may not be otherwise transmitted or reproduced in print or electronic form without the consent of the Publisher. For more information, call (703) 838-6789. |