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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0659%3A40

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 1

## Text

{ 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

© <=

Il.

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
PLA BATU crecssenssecessncersccnseenoseansnereenscevenans

FL AIIIIN ccccccsecsssssescccsesccscensceossessaneossascsscssoosseones

(i)

il
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0659%3A40. Public record. Not legal advice.