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F3 Newsflash MARCH 2010 Federal Court Upholds Constitutionality of Pledge of Allegiance in Public Schools

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F3 Newsflash MARCH 2010 Federal Court Upholds Constitutionality of Pledge of Allegiance in Public Schools No. 10-30 F3 NewsFlash MARCH 2010 Federal Court Upholds Constitutionality of Pledge of Allegiance in Public Schools The Ninth Circuit Court of Appeals recently declared that a teacher-led recitation of the Pledge of Allegiance in California public schools is constitutional. (Newdow v. Rio Linda Union School Dist. (9th Cir. 2010) ___ F.3d ___, 2010 WL 816986.) In a 2-1 majority opinion, the Court held that recitation of the phrase “Under God” in the Pledge did not violate the Establishment Clause of the U.S. Constitution, which prohibits the enactment of any law or official policy in support of religion. The Court’s decision also included a 123-page dissent. The case ended a ten-year long pursuit by plaintiff Dr. Michael Newdow, who originally challenged recitation of the Pledge of Allegiance by public schools in 2000. In the original case, Newdow I -III (“Newdow III”), the Ninth Circuit sided with Newdow, holding that a school district’s policy requiring teachers to lead their classes in the Pledge of Allegiance violated the Establishment Clause. On appeal, however, the United States Supreme Court declined to reach the substantive constitutional issues, ruling that Newdow lacked standing to assert his claim because he had no custody rights over his daughter. The Plaintiffs in the current case included Newdow and three unnamed parents of children currently attending schools in the Rio Linda Union School District. The Plaintiffs challenged the District’s policy and practice established under California Education Code section 52720, which required a teacher-led, daily recitation of the Pledge of Allegiance. Under the District policy, objecting students and teachers could abstain from reciting all or part of the Pledge of Allegiance. In their suit, Plaintiffs specifically alleged that the words “Under God” in the Pledge of Allegiance offended their beliefs that there is no God, interfered with their rights as parents, and indoctrinated their children with religious beliefs in violation of the Establishment Clause. As a result, Plaintiffs demanded that the District discontinue reciting the Pledge of Allegiance. Majority Opinion Upholding the Pledge In the 2-1 majority opinion, the Court upheld the constitutionality of the Pledge of Allegiance, explaining that “the Pledge is one of allegiance to our Republic, not of allegiance to God or any other religion.” To help interpret the Establishment Clause, courts typically apply one or more of the following tests: (1) the Lemon test1 (2) the Endorsement test2 and (3) the Coercion test.3 Here, the Court applied all three doctrines, finding the Pledge and the phrase “Under God” constitutional under each test. 1 In the landmark case of Lemon v. Kurtzman (1971) 403 U.S. 602, the U.S. Supreme Court created a three-part test requiring that government action: a) must have a secular purpose, b) must not have the primary effect of advancing or inhibiting religion and c) must not result in excessive government entanglement with religion. 2 The Endorsement test asks whether a reasonable observer would conclude that the government action is either endorsing or disapproving of religion. (Lynch v. Donnelly (1984) 465 U.S. 668.) 3 The Coercion test inquires whether the government action coerces non-believers to support or participate in a religious exercise. (Lee v. Weisman (1992) 505 U.S. 577.) First, applying the Lemon test, the Court declared that both the context and historical significance of the Pledge made it a patriotic exercise, not a religious one. The Court emphasized that the inclusion of the words “Under God,” did not automatically transform the Pledge into a religious exercise or prayer. Rather, the Court explained, Congress incorporated the phrase “Under God” into the Pledge as “a reference to the historical and religious traditions of our country, not a personal affirmation through prayer or invocation that the speaker believes in God.” The Court further noted that under the District’s policy and Education Code section 52720, the Pledge is optional, allowing objectors to abstain from reciting it without facing any negative consequences. Next, the Court applied the Endorsement test to determine whether the District’s recitation of the Pledge had either the purpose or effect of endorsing religion. The Court relied on the same reasons articulated under the Lemon test, finding that both the purpose and effect of the Pledge are “predominantly of a patriotic, not religious exercise.” The Court concluded that the Pledge was merely an “endorsement of our form of government, not a particular religion or sect” and the use of the phrase “Under God” was in recognition “of our Founder’s political philosophy that a power greater than the government gives people inalienable rights.” Finally, the Court held that the District policy did not violate the Coercion test because the recitation of the Pledge did not coerce the students to support or participate in religion or religious exercise. The Court acknowledged that the Pledge may be inherently coercive, but “students are being coerced to participate in a patriotic exercise, not a religious exercise.” Dissenting Opinion The 123-page dissent followed the majority opinion and sharply contested the Court’s decision to uphold the Pledge. The dissent focused on Congress’ intent in adding the two-word phrase “Under God” in a 1954 amendment to the Pledge, which was originally drafted in 1892. The dissent stated, “It is not the recitation of the Pledge that has long endured that is at issue here, but its recitation with the congressionally added two words ‘Under God’- words added in 1954 for a specific religious purpose, of indoctrinating school children with a religious belief.” The dissent argued that, given the specific religious purpose of the 1954 amendment, the District’s recitation of the amended version of the Pledge, containing the “Under God” phrase, violated all three tests of the Establishment clause. The Plaintiffs have indicated that they will seek appeal of the ruling in the U.S. Supreme Court, although it is unclear whether the U.S. Supreme Court will accept the case. Under the current decision, Education Code section 52720 and District policies requiring recitation of the Pledge remain valid. However, we note that all district policies and practices must allow teachers, staff and students to abstain from the Pledge if they so choose. We will continue to monitor this decision and will keep you informed of any significant developments. If you have any questions regarding this case, and its impact on your school district, please contact one of our five offices. F3 NewsFlash prepared by Melanie A. Petersen and Kelley A. Owens. Melanie is a partner in the F3 San Marcos office. Kelley is an associate in the F3 San Marcos office. This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this new case may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.fagenfriedman.com. Recently, in the case of Greene v. Camreta (9th Cir. 2009) ___ F.3d ___[2009 WL 4674129], the Ninth Circuit Court of Appeals clarified the applicable Fourth Amendment search and seizure standards for conducting in-school interviews of suspected child abuse victims by social workers serving a law enforcement purpose and law enforcement in the K-12 setting. However, this case also prompted more questions than it answered. So as part of the E-ducation™ Professional Development Series hosted by ACSA and F3, we will be offering a webinar on this case on April 20, 2010. You can find more information on the ACSA website at www.acsa.org/e-ducation. 188797 2525 Alluvial Avenue, Suite 271, Clovis, California 93611 Tel. 323.330.6300 Fax 323.330.6311 6300 Wilshire Blvd., Suite 1700, Los Angeles, California 90048 Tel. 323.330.6300 Fax 323.330.6311 70 Washington St., Suite 205, Oakland, California 94607 Tel. 510.550.8200 Fax 510.550.8211 520 Capitol Mall, Suite 400, Sacramento, California 95814 Tel. 916.443.0030 Fax 916.443.0030 1 Civic Center Dr., Suite 300, San Marcos, California 92069 Tel. 760.304.6000 Fax 760.304.6011 © 2010 Fagen Friedman & Fulfrost, LLP All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost, LLP hereby grants permission to any client of Fagen Friedman & Fulfrost, LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client..
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