6/22/04 -- Public school students can continue to recite the Pledge of Allegiance in class, the U.S. Supreme Court ruled June 14, but the Court did not rule on whether such a practice is constitutional.
The decision overturned a ruling by the U.S. 9th Circuit Court of Appeals in February 2002 that the Elk Grove (Calif.) Unified School District's policy of having students recite the pledge violates the First Amendment by blending church and state.
But the Supreme Court limited its ruling to technical issues, finding that the plaintiff, Michael Newdow, did not have the legal authority to file the suit on behalf of his 10-year-old daughter, because he did not have full custody of her.
A statement on the decision by NSBA calls it a "mixed bag" for school boards. "On the one hand, we are relieved that school board Pledge of Allegiance policies have not been struck down, and we welcome legal clarity about how to respond to parent demands where there are custody issues," says Executive Director Anne L. Bryant.
"But we are disappointed that the Court failed to find that daily school recital of the Pledge of Allegiance is an exercise in citizenship and not a religious exercise," Bryant says.
NSBA had submitted a friend of the court brief urging the Supreme Court to view the pledge as a ceremonial and educational activity and as an exercise in patriotism. The brief also urged the Court to reaffirm school board authority to make choices within constitutional boundaries and thus reduce the likelihood of litigation over curriculum choices.
"Public schools are indispensable to citizenship and national unity," Bryant says. "Our school boards have to know that they will not be sued every time a school refers to the role of religion in society."
Elk Grove Superintendent Dave Gordon says it would have been better if the Supreme Court had decided the case on the merits. He says, "our board of education has always believed that the Pledge of Allegiance is a unifying, patriotic exercise that reflects the historical ideals upon which this great country was founded."
Newdow, an atheist, had argued that the daily recital of the pledge is religious indoctrination. But because Newdow is involved in a protracted custody battle, the Supreme Court ruled he does not have standing to represent his daughter.
The child's mother, Sandra Banning, had submitted legal filings saying she makes decisions about her daughter's education, wants to keep the pledge as it is, and wants her daughter to recite it in class.
"When hard questions of domestic relations are sure to affect the outcome," Justice John Paul Stevens wrote in the majority opinion, "the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law."
Newdow, noting that his daughter spends 10 days a month with him, said "the suggestion that I don't have sufficient custody is just incredible. This is a blow for parental rights," the Associated Press reported.
Chief Justice William Rehnquist, Justice Sandra Day O'Connor, and Justice Clarence Thomas issued separate concurring opinions that indicate the words "under God" in the pledge are more about ceremony and history than religion.
Rehnquist compared the phrase to the motto, "In God We Trust," on U.S. currency and to the statement, "God save this honorable Court," which is recited at the opening of each session of the U.S. Supreme Court.
"All these events strongly suggest that our national culture allows public recognition of our nation's religious history and character," Rehnquist wrote.
"On the merits," Rehnquist wrote, "I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words 'under God,' does not violate the Establishment Clause of the First Amendment."
"The court has permitted government, in some instances, to refer to or commemorate religion in public life," O'Connor wrote. These references "are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history."
Justice Antonin Scalia removed himself from participating in the case because he had earlier made remarks that indicated he believed the pledge is constitutional.
Congress adopted the pledge as a national patriotic tribute in 1942. The words "under God" were added in 1954 during the Cold War to distinguish the United States from nations under the thrall of "godless communism."