Amicus Curiae Brief — Elk Grove Unified School Dist. v. Newdow

{ Sunrome Court, U.S.

ay FILED

}

No. 02-1624 DEC 1 9 2005

1 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

ELK GROVE UNIFIED SCHOOL DISTRICT, et al..,

Petitioners,

Vv.

MICHAEL A. NEwbow,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL EDUCATION ASSOCIATION

IN SUPPORT OF PETITIONERS

ROBERT H. CHANIN *

JEREMIAH A. COLLINS

JASON WALTA

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N.W.

Suite 1000

Washington, DC 20005

* Counsel of Record (202) 842-2600

December 19, 2003

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

IT DOES NOT VIOLATE THE ESTAB-

LISHMENT CLAUSE FOR _ PUBLIC

SCHOOLS TO PROVIDE FOR’ THE

RECITATION OF THE PLEDGE OF

ALLEGIANCE BY WILLING STUDENTS

PD TAI IIIIE cccsscecesocsssssesssessccsccssesscevsesnvene

THE PRESENT CASE DOES ' NOT

PRESENT—AND THIS COURT SHOULD

NOT DECIDE—WHETHER PUBLIC

SCHOOL TEACHERS MAY BE FORCED

TO LEAD OR RECITE THE PLEDGE OF

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FL AIIIIN ccccccsecsssssescccsesccscensceossessaneossascsscssoosseones

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TABLE OF AUTHORITIES

CASES Pages

Agostini v. Felton, 521 U.S. 203 (1997)...........0008 18

American Civil Liberties Union of Ohio v.

Capitol Square Review & Advisory Bd., 243

YY | (2) eee 13

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675

( Fi cecsscsmessennndeenmesmmeiiditensinaihiieedsiaannni 18

Board of Educ. v. Barnette, 319 U.S. 624 (1943)... 8, 20

Boring v. Buncombe County Bd. of Educ., 136

F.3d 364 (4th Cir.) (€7 DAN) ...ccccccccccesseeceeceeeeees 21

California Teachers Ass'n v. State Bd. of Educ..,

271 F.3d 1141 (9th Cir. 2001)...........scccsseesseeeees 22

Cockrel v. Shelby County Sch. Dist., 270 F.3d

PSD CSRs Cae, GIS P cccscssonsssccnnsenteiseuntenniaiiaisenians 21

County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989) wo. eeeceeeeeee 15, 16, 18, 19

Edward v. Aguillard, 482 U.S. 578 (1987).......... 7,17, 18

Edwards y. California Univ. of Pa.., 156 F.3d

GES GB Ct. CSTD ccesccsccnssstinnsnniicmastiiteiiaiimananan 21

Engel v. Vitale, 370 U.S. 421 (1962)......ccceeseeseees 16

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

( FBP vcccocconseccensemenenessnsesenntetiinieneaieniaiiaiaana 22

Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).. 8, 21

Kirkland v. Northside Indep. Sch. Dist., 890 F.2d

FOS Goa Cae. FUP? cccseccssesenstutiniiieemensiiiaammian 21

Lee v. Weisman, 505 U.S. 577 (1992)....... 4,9, 16, 18, 19

Lemon v. Kurtzman, 403 U.S. 602 (1971)............. 4,18

Lynch v. Donnelly, 465 U.S. 668 (1984) ....... 4, 15, 16, 19

Marsh v. Chambers, 463 U.S. 783 (1983)......c00000 15

Newdow v. United States Congress, 292 F.3d 597

CR Ct. TEND sessnssimeniiotitimmaan 4,5

Newdow v. United States Congress, 328 F.3d 466

CO CAP, FIED cxccseserconcensemninettiiiaenaaae 5

Palmer v. Bd. of Educ., 603 F.2d 1271 (7th Cir.

59 TP) coccceccsnsnsensnsneasenenneniesinaiiinianaaaeee 22

iil

TABLE OF AUTHORITIES—Continued

Pages

Pickering v. Bd. of Educ., 391 U.S. 503 (1968) .... 22

Russo v. Cent. Sch. Dist. No. 1, 469 F.2d 623 (2d

Bey a rsesteentecnnrnnsemnensnsnensceessnessnssssccnsncsvsnsntensee 22

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

STII sinintdinimeneensnqeesansmnsenssnccenmescansescceussseeeseoeesioes 19

School Dist. of Abington Township v. Schempp,

Fe ts BD CUPP carnscccscscccssececccssvssescssscssesece 10, 17

School Dist. of Grand Rapids v. Ball, 473 U.S.

STATI ctntrenensennsnccnannesnecscssscescsnsnscecssvesseres 18

Shelton v. Tucker, 364 U.S. 479 (1960)..........ccc00e8 8, 21

Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d

GF CREA BUMP casesenscesccsccscscsncccecsseccesessesesee 13

Silano v. Sag Harbor Union Free Sch. Dist. Bd.

of Educ., 42 F.3d 719 (2d Cir. 1994) .....ccccceeees 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ....cccccceceeees 17

STATUTES AND CONSTITUTIONAL

PROVISIONS

UBC. § D cccccccccccscccccscsecccccccccccscreccccscscssesesocsscsess 9

ie tO cenneienecsnsncnensctecesansccscesencscecsvsseveseseeeseseee 9

its OO ccnsenenanesnnnncensnsessaseeceseccsscnceenssnverssssocenee 9, 10

ie ON Ui etenesicnpsencecsnccessnesecncnczeccncessesecsnnseeeseseee 9

Re © ccccntnnscenensunssecnenscseceseacccsecesscsecesseessceses 9

Ries 0 OF encenessemncmsenesecssssccssesccncsscnseseseesseveneeesees 9

Be is OF Oe Oe crcenennenctsncnsenccccccccsscscvececesesnseccssece 14

Sy tis Ot SO cnencencanencnsnsnssszasencsccnsseesvecnesecseeeeee 14

SEITE UP ENEID cntsntemensnemnsnesescsecencssccsszcnseseceeessnecee 14

ta OF AE excuesensresscesescescascesestenescsseseqeeeseeece 14

Act of March 13, 1865, ch. 100 § 5, 13 Stat. 517, 518... 14

CURES, Chamne, III, ccccccccssccseccvsccccccsccccveceseccscccceccsees 13

Cal. Educ. Code § 52720..........0.cccsccssssosssseeees 3, 4, 9, 20

N.J. Const. of 1776, art. XVID... cccccceceeeeeeereeees 12

N.C. Const. of 1776, Decl. of Rights, § XIX......... 12

DOD, Commaat. tt, ..ccccccccccesccsccsccscccscccccccccsccsccccccccees 13

iV

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page

H.R. Rep. No. 1693, 83d Cong., 2d Sess.

(FB UD concnsmsasenessmesssnemscessennmmesmmensmeanintnnintnees 10, 11, 12

S. Rep. No. 1287, 83d Cong., 2d Sess. (1954)... 11,12

OTHER AUTHORITIES

Abraham Lincoln, Selected Speeches and Writ-

ings of Abraham Lincoln (Library of America

GE, FD cccenensssssuscemasmenesennnneneenenntnnniaiiaiadanen 13

Lawrence H. Tribe, American Constitutional

GIG Cae crenntenccsinmenenntnnantinien 15

George Washington, Writings of George Wash-

ington (Library of America ed. 1997) ............... 14

IN THE

Supreme Court of the Anited States

No. 02-1624

ELK GROVE UNIFIED SCHOOL DISTRICT, et al.,

Petitioners,

Vv.

MICHAEL A. NEWDow,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL EDUCATION ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

This brief amicus curiae is submitted, with the consent

of the parties, on behalf of the National Education Associa-

tion (“NEA”), a nationwide employee organization with more

than 2.7 million members.' Most NEA members are

employed as teachers in public school districts throughout the

United States, and, as such, regularly are called upon

to conduct patriotic observances, including “lead[ing]

willing students in reciting the Pledge of Allegiance.” 124

S. Ct. 384.

' Letters of consent are on file with the Clerk. No counsel for a party

authored this brief in whole or in part, and no person or entity other than

amicus curiae made a monetary contribution to the preparation or

submission of the brief.

> -

NEA strongly believes in the principle of strict separation

between church and state, and this belief is reflected in the

policies that have been adopted by its highest governing

body—the NEA Representative Assembly. These policies

provide, inter alia, that:

The Association also believes that the constitutional

provisions on the establishment of and the free exercise

of religion in the First Amendment require that there be

no sectarian practices in the public school program. The

Association opposes the imposition of sectarian practices

in the public school program and urges its affiliates to do

the same.

Consistent with this and other similar policies, NEA has

regularly participated in this Court’s Establishment Clause

cases—from the early school aid and school prayer cases to

the most recent case involving publicly-funded vouchers for

religious schools.” In each of those cases, NEA argued that

* Cases in this Court in which NEA has participated as an amicus

curiae or as a member of an amicus curiae coalition include Epperson vy.

State of Arkansas, 393 U.S. 97 (1968); Committee For Public Ed. and

Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Sloan v. Lemon, 413

U.S. 825 (1973); Wheeler v. Barrera, 417 U.S. 402 (1974); Meek v.

Pittenge*, 421 U.S. 349 (1975); Mueller v. Allen, 463 U.S. 388 (1983);

Wallace v. Jaffree, 472 U.S. 38 (1985); School Dist. of City of Grand

Rapids v. Ball, 473 U.S. 373 (1985); Aguilar v. Felton, 473 U.S. 402

(1985); Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986);

Edwards v. Aguillard, 482 U.S. 578 (1987); Bowen v. Kendrick, 487 U.S.

589 (1988); Board of Educ. of Westside Community Schools v. Mergens,

496 U.S. 226 (1990); Lee v. Weisman, 50S U.S. 577 (1992); Zobrest v.

Catalina Foothills School Dist., 509 U.S. 1 (1993); Board of Educ. of

Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994);

Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S.

819 (1995); Agostini v. Felton, 521 U.S. 203 (1997); Santa Fe

Independent School Dist. v. Doe, 530 U.S. 290 (2000); Mitchell v. Helms,

530 U.S. 793 (2000); and Locke v. Davey, (No. 02-1315) (2003). In

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), NEA’s General Counsel

was lead counsel for the respondents.

— — =

3

the challenged practice breached the constitutional wall of

separation between church and state.

Although in the instani case NEA is for the first time

taking the position that a challenged practice does not violate

the Establishment Clause, this in no sense reflects any

slackening of NEA’s long-held belief that religious activities

have no place in the public schools. To the contrary, we take

this position because NEA—whose members are in a prime

position to assess at first hand the implementation of policies

that provide for the recitation of the Pledge in public

schools—does not consider such a recitation to be a sectarian

activity, but rather a patriotic observance that serves the

secular purpose of promoting an understanding of and

appreciation for our nation’s heritage and founding principles.

NEA’s official position with regard to the recitation of the

Pledge in public schools is set forth in the following policy,

which was adopted by the NEA Board of Directors:

NEA supports the Pledge of Allegiance as it is now

written. NEA does not believe that the inciusion of the

words “under God” in the Pledge of Allegiance poses a

threat to the principle of separation of church and state

that is embodied in the Establishment Clause to the First

Amendment or to the personal freedoms that the

Establishment Clause is designed to protect.

NEA submits this brief amicus curiae in support of the above

position.”

STATEMENT

California law requires each public elementary school in

the State to “conduct{] appropriate patriotic exercises” at the

beginning of the school day. Cal. Educ. Code § 52720. The

*We hasten to point out that NEA would view this case very

differently if either students or teachers were compelled to recite or lead

the Pledge, but that question is not presented here. See infra at 20-22.

4

law provides further that “[t}he giving of the Pledge of

Allegiance to the Flag of the United States of America shall

satisfy the requirements of this section.” /d. In order to

comply with this statutory requirement, petitioner Elk Grove

Unified School District (“Elk Grove”) has adopted a policy

that mandates the recitation of the Pledge in all of its

elementary schools once each day.

Respondent Michael Newdow is the noncustodial father of

a child enrolled in one of -Elk Grove’s elementary schools.

The teacher of his child’s class leads the students in a daily

“recitation of the Pledge.

In March 2000, Newdow filed suit against the President of

the United States, the United States Congress, the United

States of America, the State of California, and two California

school districts and their superintendents, seeking a

declaration that the 1954 statute adding the words “under

God” to the Pledge is “facially unconstitutional” under the

Establishment and Free Exercise Clauses of the First

Amendment. He also sought injunctive relief requiring the

President and Congress to remove those words from the

Pledge and prohibiting California schools from leading

students in reciting the Pledge as it is now written.

The district court dismissed the complaint for failure to

state a claim. However, a divided panel of the Ninth Circuit

reversed the district court’s decision in part, holding that

inclusion of the words “under God” in the Pledge of

Allegiance violates the Establishment Clause. New ‘ow vy.

United States Congress, 292 F.3d 597 (9th Cir. 2002). The

majority held that Newdow’s claim succeeded under all three

of the Establishment Clause tests that have been adopted by

this Court: the three-prong test outlined in Lemon vy.

Kurtzman, 403 U.S. 602 (1971); the “endorsement test,”

County of Allegheny v. American Civil Liberties Union, 492

U.S. 573 (1989); and the “coercion” test, Lee v. Weisman,

505 U.S. 577 (1992). Judge Fernandez dissented, arguing

—s +

oe.

5

that “such phrases as ‘In God We Trust,’ or ‘under God’ have

no tendency to establish a religion in this country or to

suppress anyone’s exercise, or non-exercise, of religion,

except in the fevered eye of persons who most fervently

would like to drive all tincture of religion out of the

public life of our polity.” 292 F.3d at 614 (Fernandez,

J., dissenting).

Upon motions for rehearing and rehearing en banc, the

original panel issued an amended opinion and denied the

motions for rehearing. Newdow v. United States Congress,

328 F.3d 466 (9th Cir. 2003). In its amended opinion, the

court limited its Establishment Clause holding to Elk Grove’s

use of the Pledge in its schools. /d. at 490. With regard to

Newdow’s challenge to the facial constitutionality of the

Pledge, the court below vacated the district court’s decision in

favor of the United States and remanded for further

proceedings. /d. In addition, the court’s amended opinion

holds only that Elk Grove’s policy violates the “coercion”

test, and does not address either the Lemon test or the

“endorsement” test. /d. at 487.

Judge Fernandez again dissented from the court’s

Establishment Clause holding, largely for the reasons set

forth in his initial dissenting opinion. /d. at 490-93

(Fernandez, J., dissenting).

Judge O’Scannlain, joined by Judges Kleinfeld, Gould,

Tallman, Rawlinson, and Clifton, dissented from the court’s

denial of rehearing en banc. Judge O’Scannlain stressed that

this Court consistently has distinguished between “patriotic

invocations of God on the one hand,” and public school

“prayer, an ‘unquestioned religious exercise,’” on the other.

Id. at 474 (O’Scannlain, J., dissenting from rehearing en

banc).

This Court granted certiorari on the question “[w]Jhether a

public school district policy that requires teachers to lead

6

willing students in reciting the Pledge of Allegiance, which

includes the words ‘under God,’ violates the Establishment

Clause of the First Amendment, as applicable through the

Fourteenth Amendment.” 124 S. Ct. 384 (2003)."

SUMMARY OF ARGUMENT

I.

In pledging allegiance to the “Flag of the United States of

America” and “to the Republic for which it stands,” public

school students engage in a patriotic observance, not a

religious exercise.

The fact that the Pledge, in describing the character and

history of that Republic, refers to the nation as “under God”

does not convert the Pledge into a state-sponsored profession

of religious belief such as would violate the Establishment

Clause. Rather, the words are best understood as a reflection

of the simple historical fact that the Founders believed in a

supreme being, and that their belief led them to dedicate the

nation to the fundamental secular precept that all men have

unalienable rights to liberty and justice.

That is the message Congress intended the Pledge to

convey when it added the words “under God” in 1954:

Congress believed that the amended Pledge would indicate to

the world, and to our own citizens as well, that this nation

was “founded on the concept of the individuality and the

dignity of the human being,” in contrast to the “subservience

of the individual” that characterized the Communist nations.

The Pledge’s reference to God is of a piece with similar

references in documents that are central to the founding of the

*This Court also granted certiorari on the threshold question

“{wjhether respondent has standing to challenge as unconstitutional a

public school district policy that requires teachers to lead willing students

in reciting the Pledge of Allegiance.” 124 S. Ct. 384. NEA expresses no

view as to that question.

7

United States and the preservation of its ideals, including,

among others, the Declaration of Independence and Lincoln's

Gettysburg Address. So too, the laws and customs of the

federal government have long been replete with ceremonial

references to a supreme being, from the National Motto “In

God we trust,” which has been inscribed on United States

coins since 1865 and is quoted in the National Anthem, to the

practice, dating back to the tenure of Chief Justice Marshall,

of having the Supreme Court crier open this Court’s sessions

with the proclamation “God save the United States and this

honorable Court.”

These ceremonial references to our nation’s religious

heritage—which consistently appear as isolated and elliptical

references to a supreme being, made without elaboration of

religious precepts, and without any express or implied

exhortation to observe any religious customs—have long

coexisted with the principles of religious freedom. And in

numerous decisions, albeit in dictum, this Court has

concluded that the Pledge is fully consistent with the

Establishment Clause.

That conclusion comports with a rigorous application of

the Establishment Clause—and rigorous application is

essential here, in view of “the particular concerns that arise in

the context of public elementary and secondary schools.”

Edward v. Aguillard, 482 U.S. 578, 585 (1987).

The purpose of the Pledge unquestionably is secular and

patriotic, not religious. And, as for the Pledge’s effects, a

reasonable observer acquainted with the relevant history and

context of the inclusion of the words “under God” in the

Pledge—as well as the history and context of similar

references to God in our laws and customs—would

understand the Pledge for what it is intended to be: a potent

statement of patriotic observance, loyalty, and devotion to the

principles on which the nation was founded, not a state-

sponsored profession of religious belief.

8

That being so, recitation of the Pledge by willing students

and teachers in the public schools does not violate the

Establishment Clause.

Although Elk Grove mandates the recitation of the Pledge

in each classroom, there is nothing in the record to indicate

that the school district requires students or teachers to

participate in the recitation. If it did, such an “inva[sion

of] the sphere of intellect and spirit which it is the purpose

of the First Amendment to our Constitution to reserve from

all official control,” Board of Education v. Barnette, 319

U.S. 624, 642 (1943), would put this case in an entirely

different posture.

Barnette holds that public school students cannot

constitutionally be compelled to recite the Pledge. And this

Court’s decisions in Keyishian v. Board of Regents, 385 U.S.

589 (1967), and Shelton v. Tucker, 364 U.S. 479 (1960),

suggest that the same should be true as to teachers. But the

question is complicated by the fact that leading students in the

recitation of the Pledge might be seen, at least in part, as a

matter of curriculum, and the law is unsettled regarding the

nature and extent of a public school teacher’s right to object

to curricular decisions of school authorities that involve

matters of public concern.

The question whether public school teachers may be

required to lead the recitation of the Pledge need not and

should not be confronted in this case. Consideration of the

constitutionality of such a requirement should be left for a

case in which the question is squarely presented.

9

ARGUMENT

I. IT DOES NOT VIOLATE THE ESTABLISH-

MENT CLAUSE FOR PUBLIC SCHOOLS TO

PROVIDE FOR THE RECITATION OF THE

PLEDGE OF ALLEGIANCE BY WILLING

STUDENTS AND TEACHERS. '

A. Elk Grove provides for recitation of the Pledge of

Allegiance in order to comply with California law requiring

that each public elementary school “conduct[] appropriate

patriotic exercises” at the beginning of the school day. Cal.

Educ. Code § 52720 (emphasis added). And, in reciting the

Pledge, students pledge allegiance, not to any religious belief

or supreme being, but to the “Flag of the United States of

America,” and “to the Republic for which it stands.” 4

U.S.C. § 4. Thus, recitation of the Pledge is clearly intended

to be a patriotic observance, and is not in any way undertaken

as a “religious exercise” or a “state-sponsored religious

activity.” Lee v. Weisman, 505 U.S. 577, 586 (1992).°

Although this fact is necessary to the conclusion that no

Establishment Clause violation is present in this case, it is not

sufficient: it certainly would be possible for the government

to insert impermissibly religious content into a patriotic

observance. The dispositive question is whether that is

the situation here. As we now demonstrate, the text of the

Pledge itself, the basis on which Congress acted in adding the

words “under God” to the Pledge in 1954, and the use of

similar words in other patriotic contexts from the time of the

* Title 4 of the United States Code, under which the Pledge statute is

now codified, is devoted entirely to rules governing patriotic observance

of the Flag. See, e.g., 4 U.S.C. §§ 1-2 (providing for the stars-and-

stripes design of the Flag); id. § 4 (establishing posture to be assumed

during recitation of the Pledge); id. § 6 (providing for time and occasion

of Flag’s display); id. § 7 (dictating position and manner of Flag’s

display); id. § 9 (establishing conduct during hoisting, lowering, or

passing of Flag).

10

Framers to the present, all indicate that the answer to this

question is “no.”

1. After declaring that the speaker is pledging allegiance

to the Flag and to the Republic, the remainder of the Pledge

describes the character and history of that Republic: a unified

nation, composed of individual States, yet indivisible as a

whole; a nation founded for the purposes of promoting liberty

and justice for all; and a nation that is “under God.” 4 U.S.C.

§ 4. In this context, the single reference in the P edge to the

Republic as one that exists “under God”—unaccompanied by

any further elaboration—cannot reasonably be viewed as an

impermissible governmental promotion of religion.

The inclusion of those two words in the Pledge is best

understood, not as a profession of support for any religious

belief or observance, but as a reflection of the simple

historical fact that the Founders believed in a supreme being,

and that their belief led them to dedicate the nation to the

fundamental secular precept that all men have unalienable

rights to liberty and justice. See, e.g., School Dist. of

Abington Township v. Schempp, 374 U.S. 203, 213 (1963)

(“The fact that the Founding Fathers believed devotedly that

there was a God and that the unalienable rights of man were

rooted in Him is clearly evidenced in their writings, from the

Mayflower Compact to the Constitution itself.”’).

2. That is the message Congress intended the Pledge to

convey when it added the words “under God” in 1954. The

purpose of these words was to differentiate the United States

from its Cold War enemies, and to demonstrate the United

States’ commitment to human dignity and freedom. Declar-

ing that “[a]t this moment of our history the principles

underlying our American Government and the American way

of life are under attack by a system whose philosophy is at

direct odds with our own,” H.R. Rep. No. 1693, 83d Cong.,

2d Sess. 1 (1954), Congress believed that the amended Pledge

would textually reject the “communis[t] [philosophy] with its

ee ee

attendant subservience of the individual,” id. at 2, thereby

highlighting a foundational difference between the United

States and Communist nations.

In this connection, the Senate Report reasoned that “(t]he

spiritual bankruptcy of the Communists is one of our

strongest weapons in the struggle for men’s minds and

this resolution gives us a new means of using that weapon.”

S. Rep. No. 1287, 83d Cong., 2d Sess. 2 (1954). In contrast

to the Communist philosophy, the House Report explained,

“foJur American Government is founded on the concept of

the individuality and the dignity of the human being,” and

“(underlying this concept is the belief that the human person

is important because he was created by God and endowed by

Him with certain inalienable rights which no civil authority

may usurp.” H.R. Rep. No. 1693 at 1-2; see also S. Rep. No.

1287 at 2.

Plainly, Congress was not saying that the way to win “the

struggle for men’s minds” around the world, S. Rep. No.

1287 at 2, was by a profession of religious belief. Rather,

what Congress wanted to communicate in that struggle was

that ours is a nation “founded on the concept of individuality

and the dignity of the human being,” which rejects the

“subservience of the individual” that characterized the

Communist nations. H. Rep. No. 1693 at 2. It was in

furtherance of that entirely secular message that Congress

used the words “under God” as a shorthand for the belief in

God that, as-a matter of historical fact, was understood by the

Founders to be the source of the nation’s commitment to the

fundamental secular precept that all men have certain

unalienable rights. See id. (Pledge reflects the “traditional

concept that our nation was founded on a fundamental belief

in God”).

In addition to providing those around the world with a

better understanding of the ideals that inform our nation, the

amendment to the Pledge was also designed to inculcate the

12

values of freedom and democratic participation in future

generations of Americans. As the House Report put it,

through “daily recitation of the pledge in school,” “the

children of our land . . . will be daily impressed with a true

understanding of our way of life and its origins,” so that “[a]s

they grow and advance in this understanding, they will

assume the responsibilities of self-government equipped to

carry on the traditions that have been given to us.” /d. at 3.

In other words, by reciting the Pledge, students declare

their commitment to the principles of freedom and human

dignity that have traditionally been conveyed by

characterizing our nation as one that exists “under God”; they

do not thereby profess their personal adherence to any

religious belief or observance.

3. As the 1952 Congress recognized, the Pledge’s

reference to God is of a piece with similar references in

documents that are central to the founding of the United

States and the preservation of its ideals. See id. at 2; S. Rep.

No. 1287 at 2.

In the Declaration of Independence, the Founders claimed

that the right to “dissolve the political band” with Great

Britain was based on “the Laws of Nature and of Nature’s

God.” And, of course, in the Declaration’s most famous

passage, they professed that “all men are created equal, [and]

_ that they are endowed by their Creator with certain

unalienable Rights.” Similarly, the Constitution’s immediate

predecessor, the Articles of Confederation, paid homage to

“the Great Governor of the World.”

°Such invocations of God are commonplace in the historical

documents evidencing the political heritage of the States as well. See,

e.g., N.C. Const. of 1776, Declaration of Rights, § XIX, reprinted in 5 The

Federal and State Constitutions 2788 (Francis N. Thorpe ed., 1909)

(referring to the “natural and unalienable right to worship Almighty

God”), N.J. Const. of 1776, art. XVIII, reprinted in 5 The Federal and

State Constitutions, supra, at 2597 (referring to the “inestimable privilege

13

Congress’s amendment to the Pledge partakes of this

historical tradition. Indeed, the words “under God” trace

back to identical language in Lincoln’s Gettysburg Address—

a speech that public school students commonly are called

upon to memorize and recite. See Sherman v. Cmty. Consol.

Sch. Dist. 21, 980 F.2d 437, 446 (7th Cir. 1992); see also

Capitol Square Review & Advisory Bd., 243 F.3d at 301 n.10

(“Congress, taking a leaf from the Gettysburg Address,

amended the Pledge of Allegiance by inserting the phrase

‘under God’ between ‘one Nation’ and ‘indivisible.’”).

In that address, Lincoln spoke from the site of a bloody and

decisive Civil War battle, and identified the “great task

remaining before us”: “that from these honored dead we take

increased devotion to that cause for which they gave the last

full measure of devotion—that we here highly resolve that

these dead shall not have died in vain—that this nation, under

God, shall have a new birth of freedom—and that government

of the people, by the people, for the people, shall not perish

from the earth.” Abraham Lincoln, Address at Gettysburg,

Pennsylvania (Nov. 19, 1863), reprinted in Selected Speeches

and Writings of Abraham Lincoln 405 (Library of America

ed. 1992) (emphasis added). The use of the words “under

God” in Lincoln’s Address is not an exhortation to conform

to any religious faith, but rather a call to uphold the secular

values of freedom and self-government—and the linkage to

of worshipping Almighty God”). Indeed, the preambles to the

constitutions of forty-four states currently refer in one way or another to a

supreme being. See, ¢.g., Md. Const. pmbl. (referring to “We, the People

of the State of Maryland, grateful to Almighty God for our civil and

religious liberty”); Calif. Const. pmbl. (referring to “We, the People of the

State of California, grateful to Almighty God for our freedom”); see also

American Civil Liberties Union of Ohio v. Capitol Square Review &

Advisory Bd., 243 F.3d 289, 2296 n.6 (6th Cir. 2001) (en banc) (listing

states with such constitutional provisions).

14

that Address serves to reinforce the secular patriotic character

of the Pledge.’

So too, the laws and customs of the federal government

have long been replete with ceremonial references to a

supreme being. The National Motto is “In God we trust,” 36

U.S.C. § 302, and since 1865, Congress has w horized the

placement of this phrase on United States currency. See Act

of March 3, 1865, ch. 100, § 5, 13 Stat. 517, 518; see also 31

U.S.C. §5112(d)(1) (requiring inscription of the motto on

coins of the United States); id. § 51 14(b) (same with regard to

printed currency of the United States). The Motto is also

engraved directly above the Speaker’s dias in the Chamber of

United States House of Representatives. Likewise, the

National Anthem, “The Star-Spangled Banner,” 36 U.S.C.

§ 301, contains the couplet: “Then conquer we must, when

our cause it is just / And this be our motto: ‘In God is our

trust.” And, the Supreme Court crier, since the tenure of

” Indeed, the history and patriotic lineage of the words “under God” go

back even further, for Lincoln, a student of George Washington's

leadership in the Revolutionary War, was likely invoking earlier uses of

the words by Washington in his wartime orders. For example, in the

midst of the Revolutionary War, Washington proclaimed that “[{t}he fate

of unborn Millions will now depend, under God, on the Courage and

Conduct of this army.” George Washington, General Orders (July 2,

1776), reprinted in Writings of George Washington 225-26 (Library of

America ed. 1997) (emphasis added). Similarly, following the first

reading of the Declaration of Independence to his troops on Manhattan

Island, New York, Washington stated, “[t}he General hopes this important

Event will serve as a fresh incentive to every officer, and soldier, to act

with Fidelity and Courage, as knowing that now the peace and safety of

his Country depends (under God) solely on the success of our arms.”

George Washington, General Orders (July 9, 1776), reprinted in Writings

of George Washington, supra, at 227-28 (emphasis added). As with

Lincoln's Address, the words “under God” were invoked by Washington,

not to demand or encourage religious observance, but to inspire patriotic

loyalty to the cause of upholding the values of freedom and self-

government.

15

Chief Justice Marshall, has opened this Court’s sessions with

the proclamation God save the United States and this

honorable Court.” See Marsh v. Chambers, 463 U.S. 783,

786 (1983).

These ceremonial references to our nation’s religious

heritage—which consistently appear as isolated and elliptical

references to a supreme being, made without elaboration

of religious precepts, and without any express or implied

exhortation to observe any religious customs—have long

coexisted with the principles of religious freedom. The

“history and ubiquity” of these ceremonial references prevent

them being “understood as conveying an endorsement

of particular religious beliefs.” County of Allegheny v.

American Civil Liberties Union, 492 U.S. 573, 625 (1989)

(O’Connor, J., concurring); see also Lawrence H. Tribe,

American Constitutional Law § 14-15, at 1294-96 (2d ed.

1988) (“Clearly, practices can outgrow their religious roots,

in the common understanding of non-adherents as well as

adherents.”’). Such expressions instead are properly

understood as “‘solemnizing public occasions’ [and]

expressing confidence in the future,” County of Allegheny,

492 U.S at 625 (quoting Lynch v. Donnelly, 465 U.S. 668,

693 (1984) (O’Connor, J., concurring)).

In sum, the brief governmental references to God in our

public life are best understood not as affirmation of any

religious belief, but as references to beliefs which, as a matter

of history, underlie the prime secular values to which the

nation is dedicated.

B. The foregoing lessons have not escaped the notice of

this Court. It has accepted these examples of ceremonial

piety as non-controversial and tolerable recognition of

beliefs widely held by the Founders and the people of this

nation, that comport with a rigorous application of the

Establishment Clause.

16

In its first decision striking down a public school’s prayer

policy, this Court observed that:

There is of course nothing in the decision reached here

that is inconsistent with the fact that school children and

others are officially encouraged to express love for our

country by reciting historical documents such as the

Declaration of Independence which contain references to

the Deity or by singing officially espoused anthems

which include the composer’s professions of faith in a

Supreme Being, or with the fact that there are many

manifestations in our public life of belief in God. Such

patriotic or ceremonial occasions bear no true

resemblance to the unquestioned religious exercise that

the State of New York has sponsored in this instance.

Engel v. Vitale, 370 U.S. 421, 435 n.21 (1962).

Since this pronouncement in Engel, various opinions of

this Court have made similar observations, particularly with

respect to the constitutionality of the Pledge. For example, in

Lynch, this Court noted that “[o]ther examples of reference to

our religious heritage are found . . . in the language ‘One

nation under God,’ as part of the Pledge of Allegiance to the

American flag. That pledge is recited by many thcusands of

public school children—and adults—every year.” 465 U.S. at

676. In County of Allegheny, this Court declared: “Our

previous opinions have considered in dicta . . . the pledge,

characterizing [it] as consistent with the proposition that

government may not communicate an endorsement of

religious belief.” 492 U.S. at 602-03. See also id. at 674 n.10

(Kennedy, J., concurring in part and dissenting in part, joined

by Rehnquist, C.J., and White & Scalia, JJ.) (explaining that

the Court “will not proscribe” “the reference to God in the

Pledge of Allegiance” and similar acknowledgments of

religious culture); Lee, SOS U.S. at 638-39 (Scalia, J.,

dissenting, joined by Rehnquist, CJ., and White & Thomas,

JJ.) (noting that the Court’s invalidation of graduation prayer

did not extend to invalidate the practice of saying the Pledge

17

of Allegiance at graduations); Wallace v. Jaffree, 472 US.

38, 78 n.5 (1985) (O’Connor, J., concurring) (“[T}he words

‘under God’ in the Pledge . . . serve as an, acknowledgment of

religion with the legitimate secular purposes of solemnizing

public occasions, [and] expressing confidence in the future.”)

(citations and quotation marks omitted); id. at 88 (Burger,

C.J., dissenting) (stating that the argument that the Pledge of

Allegiance, with its reference to God, violates the

Establishment Clause “would of course make a mockery of

our decisionmaking in Establishment Clause cases”);

Schempp, 374 U.S. at 304 (Brennan, J., concurring)

(“[R]eciting the pledge may be no more of a religious

exercise than the reading aloud of Lincoln’s Gettysburg

Address.”); Engel, 370 U.S. at 440 n.S (Douglas, J.,

concurring) (“[The Pledge] in no way run[s] contrary to the

First Amendment”) (quoting H.R. Rep. No. 1693 at 3); id. at

449 (Stewart, J., dissenting) (citing as consistent with the

Establishment Clause the Pledge of Allegiance, the National

Motto “In God We Trust,” and the National Day of Prayer).

C. This Court’s consistent recognition of the

constitutionality of the Pledge (even if in dictum) reflects a

proper application of Establishment Clause standards.

Application of those standards to a case such as this must

reflect “the particular concerns that arise in the context of

public elementary and secondary schools.” Edward v.

Aguillard, 482 U.S. 578, 585 (1987). Families entrust the

public schools with the education of their children, and the

Establishment Clause ensures that such trust will not be

violated by the use of the classroom to advance religious

views. As a consequence, this Court has exercised

particularly heightened vigilance in monitoring compliance

with the Establishment Clause in elementary and secondary

18

schools." See id. at 583-84. But what we have said to this

point leaves little doubt that the recitation of the Pledge in

public schools passes muster even under the heightened

scrutiny that is warranted in this context.

An inquiry into both the purposes and effects of a

challenged practice has long been a touchstone of this Court's

Establishment Clause jurisprudence. Such inquiries comprise

the first two prongs of the tripartite Lemon test, see Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971) (asking whether a

policy passed has “a secular . . . purpose,” and whether its

“principal or primary effect” is one that “neither advances nor

inhibits religion”), and subsequent cases have clarified that

the third Lemon prong—“excessive government entanglement

with religion,” id.—has largely been collapsed into the effects

inquiry, see Agostini v. Felton, 521 U.S. 203, 205-06 (1997).

Moreover, evaluation of a policy’s purpose and effect is also

central to determining whether it passes the “endorsement”

test adopted by a majority of this Court in County of

Allegheny. See 492 U.S. at 593-94 (“The [Establishment]

Clause, at the very least, prohibits government from

*The reasons for additional scrutiny are clear. First, and most

strikingly, elementary and secondary school children are legally

compelled to attend school, thus permitting the State to “exert{] great

authority and coercive power over students.” Edward, 482 U.S. at 584.

Second, the classroom is a setting in which parents are not present to

counter “students’ emulation of teachers as role models” or their

“susceptibility to peer pressure.” /d. Unlike adults with fully formed

opinions and beliefs, “children of tender years, whose experience is

limited,” are far more likely to be prone to such coercive pressures, be

they subtle or overt. School Dist. of Grand Rapids v. Ball, 473 U.S. 373,

390 (1985), see also Lee, 505 U.S. at 593. Finally, public schools play a

pivotal role in “educating our youth for citizenship,” and therefore must

“teach by example the shared values of a civilized social order.” Bethel

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). It is vitally

important in achieving this task to guard against the divisive forces of

social conflict potentially created when government mixes religious

activity with classroom instruction.

19

appearing to take a position on questions of religious belief or

from making adherence to a religion relevant in any way to a

person's standing in the political community.”) (citations and

quotation marks omitted).

It is perfectly clear that the purpose of the Pledge is secular

and patriotic, not religious. See supra at 9-15. And, as for

the Pledge’s effects, a reasonable observer acquainted with

the relevant history and context canvassed above would not

be impressed with the notion that recitation of the Pledge

sends the “message to members of the audience who are

nonadherants ‘that they are outsiders, not full members of the

political community, and an accompanying message to

adherants that they are insiders, favored members of the

political community.’” Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 309-10 (2000) (quoting Lynch, 465 U.S. at 688

(O’Connor, J., concurring)). Instead, a reasonable observer

would understand the Pledge for what it is intended to be: a

potent statement of patriotic observance, loyalty, and

devotion to the principles on which the nation was founded.’

Thus, consideration of the factors to which this Court has

looked in its prior cases leads inexorably to the conclusion

that voluntary classroom recitation of the Pledge impinges

upon no rights protected by the Establishment Clause of the

First Amendment.

* The court below rested its decision on the conclusion that the practice

of reciting the Pledge is unconstitutionally “coercive.” But coercion is a

relevant consideration in this context only if what is being coerced is

“support or participat{ion] in religion or its exercise.” Lee, SOS U.S. at

587 (emphasis added). Because the Pledge is neither intended nor

reasonably perceived to convey a religious message, it can hardly be said

to work an unconstitutional coercion of support of, or participation in,

religion.

20

Il. THE PRESENT CASE DOES NOT PRESENT—

AND THIS COURT SHOULD NOT DECIDE—

WHETHER PUBLIC SCHOOL TEACHERS

MAY BE FORCED TO LEAD OR RECITE THE

PLEDGE OF ALLEGIANCE. -

Our argument has proceeded on the understanding that,

although Elk Grove mandates the recitation of the Pledge to

be “conducted” in each ciassroom, see Cal. Educ. Code

§52720, the school district does not require individual

students or teachers to participate in the recitation.

As to students, this Court held in Board of Education v.

Barnette, 319 U.S. 624, 642 (1943), that compulsory recita-

tion of the Pledge unconstitutionally “invades the sphere of

intellect and spirit which it is the purpose of the First

Amendment to our Constitution to reserve from all official

control.” That holding—rendered before the words “under

God” had been added to the Pledge—has itself become a

“fixed star in our constitutional constellation.” /d.

The Barnette Court had no occasion to consider whether

the holding announced in that case would apply to public

school teachers as well. Nor does this case afford such an

occasion. Although the question presented is phrased in

terms of “a public school district policy that requires teachers

to lead willing students in reciting the Pledge of Allegiance,”

there is nothing in the record to suggest that the policy at

issue would require an unwilling teacher to lead the recitation

of the Pledge. The California statute requires only that each

school “conduct[] . . . appropriate patriotic exercises,” and

this can be accomplished without requiring the involvement

of each individual classroom teacher. (It is not uncommon,

for example, for a school to conduct the recitation of the

Pledge by having an administrator recite the Pledge over the

intercom, or by havjng an instructional aide or a student lead

the Pledge if the classroom teacher does not wish to do so.)

There is no indication that Elk Grove has gone further so as to

21

require that each teacher must take part in the recitation—

and, indeed, any such requirement would present a serious

constitutional question.

On the one hand, this Court consistently has recognized

that teachers may not constitutionally be required to declare

their beliefs or to profess their loyalty to the government.

See, e.g., Keyishian v. Board of Regents, 385 U.S. 589

(1967); Shelton v. Tucker, 364 U.S. 479 (1968). As this

Court put it in Keyishian, “[oJur Nation is deeply committed

to safeguarding academic freedom, which is of transcendent

value to all of us and not merely to the teachers concerned.”

385 U.S. at 603. And, in Shelton, this Court declared that, “in

view of the nature of the teacher’s relation to the effective

exercise of the rights which are safeguarded by the Bill of

Rights and by the Fourteenth Amendment, inhibition of

freedom of thought, and of action upon thought, in the case of

teachers brings the safeguards of those amendments vividly

into operation.” 364 U.S. at 487.

On the other hand, leading students in the recitation of the

Pledge might be seen, at least in part, as a matter of

curriculum, and some may argue that teachers are not free to

disobey the curricular decisions of school authorities.

However, the nature and extent of a teacher’s rights when

curricular decisions involve matters of public concern has

never been addressed by this Court, and has deeply divided

the lower courts.”

Compare Boring v. Buncombe County Bd. of Educ., 136 F.3d 364

(4th Cir.) (en banc) (holding that public school teachers have no First

Amendment rights in choosing what will be taught), cert. denied, 525

U.S. 813 (1998); Edwards v. California University of Pennsylvania, 156

F.3d 488, 491 (3d Cir. 1998) (agreeing with Boring), cert. denied, 525

U.S. 1143 (1999); and Kirkland v. Northside Indep. Sch. Dist., 890 F.2d

794 (5th Cir. 1989) (similar holding), with Cockrel v. Shelby County Sch.

Dist., 270 F.3d 1036, 1051-55 (6th Cir. 2001) (rejecting Boring and

holding that, where a teacher’s instructional speech involves a matter of

22

Developing the proper First Amendment rule to govern

teachers’ rights and responsibilities with respect to leading

students in the recitation of the Pledge is made ali the more

difficult by the fact that the act of “leading” the recitation

necessarily involves “taking” the Pledge. For that reason, to

whatever extent the recitation of the Pledge may be

characterized as involving a matter of curriculum, see Palmer

v. Board of Education, 603 F.2d 1271 (7th Cir. 1979)

(upholding termination of teacher for refusing to teach “the

prescribed curriculum concerning patriotic matters,” of which

the Pledge was one component), it certainly is more than that,

see Russo v. Central Sch. Dist. No. 1, 469 F.2d 623 (2d Cir.

1972) (holding that a school may not condition a teacher’s

employment on her willingness to recite the Pledge).

In light of the foregoing, any consideration by this Court of

the question whether public school teachers may be required

to recite the Pledge, or (if there is a difference) to lead

students in reciting the Pledge, should await a case in which

the question is squarely presented.

public concern, the balancing test of Pickering v. Board of Education, 391

U.S. 503 (1968), is applicable); Silane v. Sag Harbor Union Free Sch.

Dist. Bd. of Educ., 42 F.3d 719, 723-24 (2d Cir. 1994) (holding that the

standard articulated in Hazelwood Sch. Dist. v. Kuhimeier, +84 U.S. 260,

273 (1988) to govern restrictions on students’ speech concerning

curricular matters, which requires that the restriction must be “reasonably

related to legitimate pedagogical concerns,” is “the appropriate measure of

the school administration’s authority to restrict [a teacher's] speech”);

California Teachers Ass'n v. State Bd. of Educ., 27\ F.3d 1141, 1148-49

(9th Cir. 2001) (assuming arguendo that “instructional speech receives

First Amendment protection” and that any infringement must satisfy the

Hazelwood standard).

23

CONCLUSION

The judgment of the court below should be reversed.

Respectfully submitted,

ROBERT H. CHANIN *

JEREMIAH A. COLLINS

JASON WALTA

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N.W.

Suite 1000

| Washington, DC 20005

* Counsel of Record ; (202) 842-2600

December 19, 2003