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

~~ ‘Supreme Cour, Us. |

FILED

(94) FEB 13 2004

OFFICE OF THE CLERK

ELK GROVE UNIFIED SCHOOL DISTRICT and

DAVID W. GORDON, SUPERINTENDENT, EGUSD,

Petitioners,

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF

ROB SHERMAN ADVOCACY

IN SUPPORT OF RESPONDENTS

Sih Gheceies Ae, Riclined D. Groseman

PO Box 7410 Counsel of Record

Buffalo Grove, IL 60089 77 West Wacker Drive

(847) 870-07 | Suite 3100

: 7 Chicago, IL 60601

(312) 750-9308

| February 13, 2004

_. EE REST AVANARIFERYR

Question Presented

Whether a public school district policy that

requires teachers to lead 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.

Table of Contents Table of Authorities

Question eG.. i Sherman v. Community Consolidated School District 21,

e ss cca wcccccccccesses 1

Table of q T ii

McCollum v. Board of Education,

Table Aro iii r è . 6 4

Interest of the o 1 Edwards v. Aguillard, 482 U.S. 578, 584-85 (1987) sues 4

Summary of the Argumennntnt/ 2 Lee v. Weisman, 505 U.S. 577 (1992) ............... 4

a w (i‘C;C;COC~™S 3 Grand Rapids School District v. Ball,

r „ 2 5

G ¶Z ꝑ⸗² eee 6

Agostini v. Felton, 521 U.S. 203, 235 (1997) .......... 5

School District of Abington Township v. Schempp,

r ᷑è 5 „ „ 6 6 6 60 6

: u ill

Interest of the Amicus

Robert I. Sherman and Richard H. Sherman were

the Plaintiffs in the Illinois Pledge of Allegiance case that

was decided by the Seventh Circuit in 1992, Sherman v.

Community Consolidated School District 21, 980 F. 2d

437 (7 Cir. 1992).

Robert I. Sherman is a leading expert on atheist

civil rights and one of the most successful and effective

atheist civil rights activists in America today. He has

won dozens of state/church separation battles in the past

twenty years.

Richard H. Sherman, who was in First Grade

when the Illinois Pledge case was filed, is now a Senior at

the University of Wisconsin in Madison, where he is

studying to be a public high school science teacher. The

decision of this Honorable Court in the Newdow case will

have a direct and significant impact on Richard when he

becomes a public school teacher next year, as well as on

all public school teachers who are atheists.

Rob Sherman Advocacy is a national social justice

organization. The organization and its predecessor

organizations have taken on a variety of social justice

issues for the past twenty years.

Summary of the Argument Argument

Public elementary school pupils are not willing The Pledge Ceremony Containing “Under God”

participants in a Pledge of Allegiance ceremony which Violates The Establishment Clause

includes the words, “under God,” due to the schoolhouse Because of the Schoolhouse Setting

setting.

The main issue confronting the Court in this case

is the constitutionality of a state-led group exercise

involving young children when that exercise includes the

words, “under God.” If there is anything that has been

consistent about this Court's Establishment Clause

rulings, it is the Court’s commitment to heightened

scrutiny in the public school setting. To wit:

[This] Court las been particularly vigilant

in monitoring compliance with the

Establishment Clause in elementary and

secondary schools. Families entrust public

schools with the education of their children,

but condition their trust on the

understanding that the classroom will not

purposely be used to advance religious

views that may conflict with the private

beliefs of the student and his or her family.

Students in such institutions are

impressionable and their attendance is

involuntary. [citations omitted]...

The State exerts great authority and

coercive power through mandatory

attendance requirements, and because of

the students’ emulation of teachers as role

modeis and the children’s susceptibility to

peer pressure. [citations omitted]...

Furthermore, “[t]he public school is at once

the symbol of our democracy and the most

2 3

pervasive means for promoting our common

destiny. In no actuvity of the State is it

more vital to keep out divisive forces than

in its schools ...”, citing, McCollum v. Board

of Education, 333 U.S. 203, 231 (1948).

Consequently, the court has been required

often to invalidate statutes which advance

religion in public elementary and secondary

schools.”

Edwards v. Aguillard, 482 U.S. 578, 584-85 (1987).

In Lee v. Weisman, 505 U.S. 577 (1992), this Court

began its analysis with the acknowledgment that “there

are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the

elementary and secondary public schools [citations

omitted 505 US at 592, 120 L.Ed.2d at 484. The Court

found that school control of the graduation ceremony

placed public pressure, as well as peer pressure, on the

attending students to participate or maintain respectful

silence. Id. at 484. This pressure, the Court held,

“though subtle and indirect can be as real as any overt

compulsion.” Id. at 484. Thus, the real question is

whether, in an elementary school setting, there is such a

thing as a truly “willing” student participant. The

inherent susceptibility of school-age children to the

subtle, but real, pressure to conform or face consequences

such as ridicule or ostracism is the underlying tenet of

this Court’s historic sensitivity to Establishment Clause

violations involving the education of children.

In Lee, supra, this Court concluded that a

state-controlled high school graduation ceremony

involving references to a deity was constitutionally

intolerable. With how much more force, then, do the

considerations that dictated the result in Lee apply here,

4

ae

when the students involved here are much younger than

those in Lee? Here, fifth graders were put to the choice of

resisting the considerable social and peer pressure to

participate in a group exercise (standing with hand over

heart and saying the Pledge) or “giving in” and reciting a

slogan (One Nation Under God") which may be anathema

to the religious beliefs of either the student and/or parent.

The choice is every bit as unacceptable in this case as it

was in Lee, perhaps more so, in light of the very tender

years of the minor child of the Petitioner.

It should not matter that the group activity was

denominated a “prayer” in Lee whereas here it is “only”

the Pledge. A slogan repugnant to one’s religious beliefs

that one is forced to utter or be ostracized is no more

palatable if buried in a patriotic exercise than it is in a

formal prayer. Moreover, the Establishment Clause

reaches beyond state sponsorship of “prayer.” In Grand

Rapids School District v. Ball, 473 U.S. 373, 389 (1985)

(rev'd on other grounds Agostini v. Felton, 521 U.S. 203,

235 (1997)), this Court declared that:

“Our cases have recognized that the

Establishment Clause guards against more

than direct, state-funded efforts to

indoctrinate youngsters in specific religious

beliefs. Government promotes religion as

effectively when it fosters a close

identification of its powers and

responsibilities with those of any - or all

religious denominations as when it

attempts to inculcate specific religious

doctrines. If this identification conveys a

message of government endorsement or

disapproval of religion, a core purpose of

the Establishment Clause is violated.”

What is the Pledge but a grand declaration that

this Nation, the flag and patriotism are all inextricably

intertwined with the belief in a monotheistic deity? It is

simply disingenuous to suggest that no one is harmed

because, after all, it is “only” the benign and “patriotic”

Pledge of Allegiance. Such an attitude insults the

theological scruples of potential student objectors, their

parents and those who added the words, “under God,” to

the Pledge. There is no reason to believe that the Pledge

does not mean what it says at this time in our history

when one’s belief in a deity or lack thereof is a significant

issue regarding one’s standing in the community. Forty

years of this Court’s Establishment Clause jurisprudence,

from School District of Abington Township v. Schempp,

374 U.S. 203 (1963) to Lee v. Weisman, supra, has

consistently taught that the Government has no business

indoctrinating children regarding religious issues.

Conclusion

The Pledge of Allegiance with the words “under

God” included in it is clearly an unconstitutional symbolic

union of God and State which conveys an unmistakable

impression of government endorsement of religion over

non-religion. Additioncily, as explained by this court in

Lee, the state-ordered group recital of the Pledge places

impressionable school-aged children in the untenable

position of succumbing to peer pressure or facing certain

ostracism. The decision of the Ninth Circuit Court of

Appeals should be affirmed.

Respectfully submitted,

Richard D. Grossman

Counsel of Record

February 13, 2004