Petition for Writ of Certiorarim — Sherman v. Community Consolidated School District 21

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| GOFFIGE -OF - THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

ROBERT IAN SHERMAN, and

RICHARD HARRY SHERMAN, a4 minor.

Petitioners,

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIF

(SCHOOL DISTRICT SUPERINTENDENT),

DR. FERNE GARRETT (PRINCIPAL OF RILEY SCHOOL),

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD GROSSMAN

Counsel of Record

Dannen, Crane, Heyman & Simon

135 S. LaSalle Suite 1540

Chicago, Illinois 60602

(312) 641-6777

Fax —- (312) 641-7114

Attorney for Petitioners:

Robert lan Sherman, and

Richard Harry Sherman

QUESTIONS PRESENTED FOR REVIEW

1. Did the court below err in holding that Lemon v. Kurtz-

man, 403 U.S. 602 (1971), no icnger supplies the calculus appli-

cable to Establishment Clause cases (i.e. that Lee v. Weisman, 505

U.S. , 120 L. Ed 2d 467 (1992), “concluded without renewing

Lemon's lease”)?

2. Did the court below err in adopting the doctrine of “cere-

monial deism” in place of the Lemon v. Kurtzman analysis?

3. Did the court below correctly conclude that the Illinois

Pledge Law is ambiguous, or did the court, contrary to this

Court’s precedents, rewrite an unambiguous statute and con-

strue it as non-mandatory in order to save it?

4. Whether or not Illinois law provides for mandatory recital

of the Pledge of Allegiance, is the Pledge Law unconstitutional

under the principles enunciated in Lee v. Weisman?

LIST OF ALL PARTIES

ROBERT IAN SHERMAN (for himself and as

natural guardian

of Richard Harry Sherman)

RICHARD HARRY SHERMAN,

a minor, Petitioners and Plaintiffs below.

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP,

LLOYD DESCARPENTRIE

(SCHOOL DISTRICT SUPERINTENDENT),

DR. FERNE GARRETT

(PRINCIPAL OF RILEY SCHOOL),

Respondents and Defendants below.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

Mame Sr OR PARTIES ....................., ii

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT CONFLICTS WITH THE

APPLICABLE DECISIONS OF THIS COURT

THE SEVENTH CIRCUIT ERRED BY

REPLACING THE TRI-PARTITE ANALYSIS

OF LEMON V. KURTZMAN WITH THE

DOCTRINE OF CEREMONIAL DEISM. 8

THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT VIOLATED THIS

COURT’S PRECEDENTS BY REWRITING AN

UNAMBIGUOUS STATUTE IN ORDER TO

SAVE IT. 12

THE SEVENTH CIRCUIT’S FAILURE TO

CONSIDER THE SPECIAL ELEMENTARY

SCHOOL CONTEXT OF THIS CASE PUTS ITS

RULING IN CONFLICT WITH TWO

DECADES OF THIS COURT’S

ESTABLISHMENT CLAUSE

JURISPRUDENCE. 14

ie tere 17

APPENDICES

Judgment of Seventh Circuit Court of Appeals Appendix A

Order of U.S. District Court

[REY Bit BOWES «a6 oe eee heen ees Appendix B

Order of U.S. District Court

fo & ee ee re ee ae Appendix C

Order of U.S. District Court

(gee. | re re rere ee oe Appendix D

TABLE OF AUTHORITIES

CASES PAGE(S)

Abbington School District vs. Scherapp, 374

U.S. 203, 303-04 (1963).........0.0.., 5

County of Allegheny vs. ACLU, 492 U.S.

ee 8 1]

Edwards v. Aguillard, 482 U.S. 578, (1987) . 11

Grand Rapids School District v. Bell, 473

Us PUREED ok vee ccescekbecesen 7, 8, 16

Houston v. Hill, 482 U.S. 451, 468 (1987) .. 14

Hutto v. Davis, 454 U.S. 370 375 (1982) ... 7

Lee vs. Weisman, 505 U.S. , 120 L.Ed.2d

oishh, ‘ome LEE EE Ree eee pe 5, 7-10, 14-17

Lemon vs. Kurtzman, 403 U.S. 602 (1971). . passim

Lynch vs. Donnelly, 465 U.S. 668, 716

ES tae ahaa e ye haa cee es eee. 5

Marsh v. Chambers, 463 U.S. 783 (1983). . . 5, 14

McCollum v. Board of Education, 333 U.S.

MER 64 en a eevee epee 10

Sherman v. Community Consolidated School

District 21 of Wheeling Township, 980 F.2d

i oS a: en rare J Ip Oe Me be 1D

West Virginia State Board of Education vs.

Barnette, 319 U.S. 624 (1943) ......... 5, 12, 14

OPINIONS BELOW

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

714 F. Supp 932 (N.D. Ill. 1989):

(The District Court’s denial of Defendant’s motion to dis-

miss appears as Appendix D herein).

745 F. Supp 1371 (N.D. Ill. 1990):

(The District Court’s ruling on Defendants’ motion to dis-

miss the first amended complaint appears as Appendix C

herein).

758 F. Supp 1244 (N.D. Ill. 1991):

(The District Court’s grant of summary judgment for

Defendants appears as Appendix B herein).

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

$80 F. 2d 437 (7th Cir. 1992):

(The opinion by the Seventh Circuit Court of Appeals

affirming the District Court’s grant of summary judgment for

Defendants appears as Appendix A herein).

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) on the grounds that the United States Court of

Appeals for the Seventh Circuit has decided a federal question in

a way that conflicts with applicable decisions of this Court, and

that the case presents an important question of federal law which

has not been, but should be, decided by this Court.

The final judgment of the United States Court of Appeals

for the Seventh Circuit was, entered November 20, 1992. This

petition for certiorari is filed within 90 days of that date.

CONSTITUTIONAL PROVISIONS

CONSTITUTION OF THE UNITED STATES

FIRST AMENDMENT

The First Amendment to the Constitution of the United

States provides in pertinent part:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.

FOURTEENTH AMENDMENT

Section 1 of the Fourteenth Amendment to the Constitu-

tion of the United States provides in pertinent part:

No State shall make or enforce any law which shal! abridge

the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the !aws.

STATE LAW PROV!SIONS

The “Illinois Pledge Law”, 105 ILCS 5/27-3, provides, in

pertinent part that:

“The Pledge of Allegiance shall be recited each school

day by pupils in elementary educational institutions

supported or maintained in whole or in part by public

funds.”

STATEMENT OF THE CASE

In late 1988, Plaintiffs filed a two-count complaint in the

United States District Court in Chicago, against certain Illinois

school officials alleging violations of the First and Fourteenth

Amendments. Specifically, Plaintiffs contended that the “Illinois

Pledge Law”, 105 ILCS 5/27-3, was unconstitutional on its face,

as it appeared to require public elementary school students in

Illinois to recite the Pledge of Allegiance, thereby violating the

Free Exercise Clause. Plaintiffs also claimed that the teacher-led

recital of the Pledge (which, since 1954, has contained the

phrase, “One Nation under God”’) created a symbolic unity of

government and religion in the presence of particularly impres-

sionable youngsters, and therefore violated the Establishment

Clause (and the Equal Protection Clause). The action was

brought pursuant to 42 USC § 1983, and 28 U.S.C. §§ 1331 and

1343 (3) were asserted as jurisdictional bases.

In the District Court, Defendants filed a motion to dismiss

which was denied. Sherman v. Community Consolidated School

District 21 of Wheeling Township, (hereafter Sherman), 714 F.

Supp. 932 (N.D. Ill 1989). The complaint was amended, how-

ever, and Defendants urged another motion to dismiss, which

was similarly denied. Sherman, 745 F. Supp 1371 (1990). Defend-

ants next made motions for summary judgments which were

granted. Sherman, 758 F. Supp 1244 (1991). The District Court

held that even though the Pledge statute used the words “shall

be recited each school day”, the use of the word “shall” was

“unfortunate”. 758 F. Supp at 1249. The Court went on to hold

that the statute did not say “all” students shall say the Pledge.

Therefore, the statute did not compel Plaintiff to say anything. In

the absence of compulsion, the Court refused to find a Free

Exercise Clause violation. With reference to Plaintiffs’ Establish-

ment Clause claim, the Court found that the Pledge Statute

passed constitutional muster under the three part test of Lemmon

vs. Kurtzman, 403 U.S. 602 (1971). The Court also disposed of

Plaintiffs’ Equal Protection claim.

Plaintiffs appealed and the United States Court of Appeals

for the Seventh Circuit rendered its opinion on November 20,

1992. The Court of Appeals affirmed the District Court's grant

of summary judgment, finding that neither the Illinois Pledge

Statute nor the practices of the Wheeling School District

violated the Free Exercise or Establishment Clauses. More spe-

cifically, the Court held that the Pledge Statute was ambiguous

and that the phrase “shall be recited each school day by pupils”

should be read “shall be recited each school day by ‘willing’

pupils.” Sherman 980 F.2d at 442-43. Therefore, the statute was

not compulsory, and the Free Exercise Clause was not violated.

The Court acknowledged the possibility that the rationale of

West Virginia State Board of Education vs. Bamette, 319 U.S. 624

(1943), combined with the school prayer cases recognizing that

recitation by a teacher or rabbi of unwelcome words is coercion.

might make the Pledge unconstitutional in the setting of this

case. Sherman, 980 F.2d at 444. But ultimately, the Court relied

on school authorities’ inherent power to prescribe the curricu-

lum in finding no Free Exercise Clause violation.

In its decision regarding the Establishment Clause, the

Court determined that it would not employ Lemon vs. Kurtzman,

403 U.S. 602 (1971), to this case, as “its status as a general

purpose tool for administering the establishment Clause is in

doubt”, and Lee vs. Weisman, 505 U.S. ___, 120 L.Ed.2d 467

(1992), “concluded without renewing Lemon’s lease”. Sherman,

980 F. 2d at 445. Rather, the Court of Appeals applied the theory

of “Ceremonial Deism” to analyze the question posed by this

case. That is, the Court examined what it regarded as the original

intent of the Framers concerning references to the Deity, and

concluded that the Founding Fathers did not consider such refer-

ences violations of the Establishment Clause. The Court also

relied on Justice Brennan’s formulation of the theory of “cere-

monial deism” in such cases as Abbington School District vs.

Schempp, 374 U.S. 203, 303-04 (1963); Marsh vs. Chambers, 463

U.S. 783, 818 (1983); (dissenting opinion); and Lynch vs. Don-

nelly, 465 U.S. 668, 716 (1984), (dissenting opinion), and dicta in

the opinions of various members of this Court approving the

Pledge.

Finally, the Court of Appeals ruled that the Eleventh

Amendment protected the Attorney General of Illinois from suit

in this case. The Court affirmed the District court’s judgment in

all other respects.

Argument for Granting The Writ

THE DECISION OF

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT CONFLICTS WITH

THE APPLICABLE DECISIONS OF THIS COURT

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

this Court declared:

“We have particularly relied on Lemon [vs. Kurtzman,

403 U.S. 602 (1971)] in every case involving the sensi-

tive relationship between government and religion in

the education of our children”

473 USS. at 383.

Below, the Seventh Circuit not only refused to apply

Lemon, it effectively announced Lemon's demise. Reviewing all

of the opinions in Lee v. Weisman, 505 U.S. —_, 120 L.Ed.2d

467 (1992), this Court’s most recent pronouncement on the

Establishment Clause, the Court of Appeals was able to hold

that “Lee concluded without renewing Lemon's lease’. Sher-

man vs. Community Consolidated School District 21 of Wheeling

Township, 980 F.2d 437, 445 (7th Cir. 1992). Noting that the

author of the majority opinion in Lee had previously disparaged

Lemon, and that the four justices in dissent proposed jettisoning

Lemon forthwith, the Seventh Circuit concluded that Lemon's

“status as a general purpose tool for administering the establish-

ment clause is in doubt” 980 F. 2d at 445. The Court of Appeals

then compounded that doubt by treating Lemon as if it were no

longer good law. Said the court: In light of the doubt surrounding

Lemon ... we are not disposed to resolve this case by parsing

Lemon.” 980 F.2d at 445.

It is, of course, axiomatic that until this Court overrules its

own precedents they must be adhered to by lower courts. Hutto v.

Davis, 454 U.S. 370, 375 (1982) (“[U]nless we wish anarchy to

prevail within the federal judicial system, a precedent of this

Court must be followed by the lower federal courts no matter

how misguided the judges of those courts may think it to be.”).

Any fair reading of Lee v. Weisman, supra, reveals that it was not

an overruling of Lemon. Indeed, the majority in Lee specifically

declined the invitation by petitioners and the United States in

that case to reconsider Lemon. 505 U.S. at ___, 120 L.Ed.2d at

480. The Seventh Circuit’s premature burial of Lemon is thus

error calling for correction by this Court through issuance of a

writ of certiorari. The error is all the more egregious because this

case involves particularly impressionable youngsters. (The minor

Plaintiff in this case was in the first grade when this action

commenced). As noted above, this Court has applied Lemon in

every Case involving the sensitive relationship between govern-

ment and religion in education. Grand Rapids, supra, 473 U.S. at

383. The Seventh Circuit’s failure to apply Lemon here repre-

sents a significant and dangerous departure from precedent,

which justifies the issuance of a writ of certiorari.

THE SEVENTH CIRCUIT ERRED BY REPLACING

THE TRI-PARTITE ANALYSIS OF LEMON Ki KURTZMAN

WITH THE DOCTRINE OF CEREMONIAL DEISM

Just as problematic as the Court of Appeals’ failure to apply

Lemon, is the adequacy of the analytic framework the Court

employed in its stead: “ceremonial deism’’. According to the

Court of Appeals, under the doctrine of “ceremonial deism” a

practice will pass constitutional muster if the Founders sanc-

tioned its use. 980 F.2d at 445. In support of its conclusion that

the Founders did not regard ceremonial invocations of God as

“establishment”, the Court cited the Declaration of Indepen-

dence, the Gettysburg Address, and the tradition of presidential

thanksgiving proclamations, all of which contain references to

the Deity. But the perils and inconsistencies of this mode of

constitutional analysis were limned by Justice Souter in Lee.

For instance, Justice Souter observed that although Presi-

dents Washington and Adams “unapologetically marked days of

ee |

‘public thanksgiving and prayer’”’ Thomas Jefferson (whose

views were relied upon by the Seventh Circuit in support of its

conclusion) steadfastly refused to do so during his presidency.

505 U.S. at —___, 120 L.Ed.2d at 505. And James Madison,

perhaps the first among equals as a Founder, initially refused to

issue such proclamations, then grudgingly did so, only to recant

later in life, describing his issuance of the proclamations as

“backsliding”. 505 U.S. at ___, 120 L.Ed.2d at 505. Stull more,

Madison consistently maintained that public expenditures for

military chaplains constituted “establishment” while that prac-

tice has been upheld by this Court and other courts. 505 U.S. at

___, 120 L.Ed.2d at 505. Ultimately, Justice Souter concluded

that:

. these practices prove, at best, that the Framers

simply did not share a common understanding of the

Establishment Clause, and, at worst, that they, like

other politicians, could raise constitutional ideals one

day and turn their backs on them the next”

505 U.S. at —___, 120 L.Ed.2d at 505-06.

Clearly, the Founders lacked the uniformity of intent neces-

sary to support the Seventh Circuit’s new theory of Establish-

ment Clause jurisprudence. Moreover, even it could be said that

the Framers shared a uniform view of these matters, 18th Cen-

tury practice should not foreclose further constitutional analysis.

As Justice Souter observed:

Ten years aiter proposing the First Amendment, Con-

gress passed the Alien and Sedition Acts, measures

patently unconstitutional by modern standards. If the

early Congress’s political actions were determinative,

and not merely relevant, evidence of constitutional

meaning, we would have to gut our current First

Amendment doctrine to make room for political

censorship.

505 U.S. at ___, 120 L.Ed.2d at 506.

a eae etnies

10 |

Putting aside the flaws in the doctrine of “ceremonial

deism”’ as propounded by the Seventh Circuit, and assuming that

this Court were inclined to accept the theory as a permissible

means of constitutional adjudication, still this Court should issue

a writ of certiorari to review the decision below. That is because

even if this Court is ready to permit “ceremonial deism”’ to

become part of this Nation’s Establishment Clause jurispru-

dence for the first time, it should not do so in a case involving

school children.

If there is anything that has been consistent about this

Court’s Establishment Clause rulings it is the Court’s commit-

ment to heightened scrutiny in the elementary school context. To

wit:

[This] Court has been particularly vigilant in monitor-

ing compliance with the Establishment Clause in ele-

mentary and secondary schools. Families entrust public

schools with the education of their children, but condi-

tion 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

models and the children’s susceptibility to peer pres

sure. [citations omitted]... .

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

of our democracy and the most pervasive means for

promoting our common destiny. In no activity of the

State is it more vital to keep out divisive forces than in

its schools . . . ”, citing, McCollum y. Board of Educa-

tion, 333 U.S. 203, 231.

Consequently, the court has been required often to

invalidate statutes which advance religion in public ele-

mentary and secondary schools.”

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

Thus, even if the doctrine of “ceremonial deism’” could

justify approval of the Pledge in adult settings, the elementary

school context of this case raises different concerns. As the Court

observed in County of Allegheny vs. ACLU, 492 U.S. 573, 620 Fn.

69:

. . . [t]his is not to say that the combined display of

a Christmas tree and a menorah is constitutional wher-

ever it may be located on government property. For

example, when located in a public school, such a dis-

play might raise additional constitutional considera-

tions. Cf. Edwards v. Aguillard, 482 U.S., at

583-584.(Establishment Clause must be applied with

special sensitivity in the public school context).”

The minor Plaintiff in this case was in first grade at the

outset of this litigation. Under Illinois law, the Pledge “shall be

recited each school day.” 105 ILCS 5/27-3. In the Pledge, God

equals country (“one Nation under God”). There is no require-

ment in the statute that a teacher leading recital of the Pledge

explain to his or her impressionable young charges that “God” in

the Pledge does not really mean the “God” that is worshipped on

Sundays or Sabbath or other days, but is, rather, the (nonreli-

gious?) God referred to by the Founders. It is hard enough for

adults to grasp this distinction, but to ask youngsters in first

grade to perceive it borders on the absurd.

In any event, the Seventh Circuit gave absolutely no consid-

eration to the special elementary school context of this case.

Even if the Court of Appeals was correct in refusing to apply

Lemon here, it should not have discarded more than thirty years

of this Court’s precedents manifesting an extraordinary solici-

tude for particularly impressionable school children. Accord-

ingly, Petitioners urge this Court to issue a writ of certiorari to

ile

review the decision of the Court of Appeals for the Seventh

Circuit, which is premised on the dubious theory of “ceremonial

deism’’, and which is in conflict with the tenor of most of this

Court’s Establishment Clause jurisprudence.

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT

VIOLATED THIS COURT’S PRECEDENTS BY

REWRITING AN UNAMBIGUOUS STATUTE

IN ORDER TO SAVE IT

The Court of Appeals found that there was no coercion

present in this case and therefore no Free Exercise Clause viola-

tion. In order to reach this conclusion the court was required to

construe the language of the Illinois Pledge Statute, 105 ILCS

5/27-3. The portion of that statute at issue is the following

sentence:

“The Pledge of Allegiance shall be recited each school

day by pupils in elementary educational institutions

supported or maintained in whole or in part by public

funds”

Petitioners contended below, and contend here, that this

statute is singularly unambiguous and compulsory. As such, it

would certainly be unconstitutional on its face under West Vir-

ginia State Board of Education v. Barnette, 319 U.S. 624 (1943), as

the Court of Appeals admitted. 980 F. 2d at 442. Petitioners

based their argument on the fact that the statute uses the word

“shall” and provides no hint of exception, melioration or accom-

modation in its language. Petitioners insisted below, and insist

here, that if a sign says “cars shall turn left at the next intersec-

tion” that it does not mean that some cars may turn left at the

next intersection, or that only willing cars shall turn left. Yet that

is precisely the interpretation supplied by the Court of Appeals

in this case.

The Seventh Circuit’s justification for its reading of the

statute is hardly cogent. It begins by describing the problem

straightforwardly enough:

what paragraphs 27-3 says is that the Pledge

‘shall be recited each school day by pupils’ in public

schools.”

980 F. 2d at 442.

The court then asks a series of questions:

“Some pupils? Willing pupils? All pupils? It does not

specify.”

980 F. 2d at 442.

These questions ignore the fact that the statute does a good

job of specifying exactly who is required to recite the Pledge:

“pupils in public [elementary] schools”. There is no more reason

to ask which pupils are required to recite under the statute than

there would be to ask which cars are required to turn under

Petitioners’ hypothetical.

The court acknowledged that if all pupils are required to

recite the Pledge the statute would be unconstitutional under

Barnette. 980 F. 2d at 442. It then observed that if the statute

means “willing” pupils the constitutional barriers evaporate. 980

F. 2d 442.

Having asked questions suggesting that the statute was

ambiguous, the court had no problem invoking the time-honored

principle of law requiring the resolution of Statutory ambiguities

in favor of the interpretation that would save the statute. The

court thus construed the statute to mean that only “willing”

pupils need recite the Pledge.

No amount of ratiocination can mask the fact that the

statute as written is plain and unambiguous. What it requires is

recitation of the Pledge by all pupils in pubic elementary schools.

Although the Court of Appeals disavowed an intent to “rewrite

the statute in order to save it”, that is precisely what it did. Its

construction of the statute was illogical,-arbitrary and in conflict

with this Court’s precedents. Where the language of a statute is

plain and its meaning unambiguous it is not susceptible to a

limiting construction. Houston v. Hill, 482 U.S. 451, 468 (1987).

The Seventh Circuit’s ipse dixit assertion of ambiguity is insuffi-

cient to save the statute.

Assuming, however, that the Court of Appeals correctly

decided the question whether the statute is mandatory vel non,

the question remains whether, under other precedents of this

Court, notably Lee v. Weisman, supra, the minor petitioner was

subjected to other forms of compulsion sufficient to require

reversal of the Appellate Court’s opinion. It is to that question

Petitioners now turn.

THE SEVENTH CIRCUIT’S FAILURE TO CONSIDER

THE SPECIAL ELEMENTARY SCHOOL CONTEXT OF

THIS CASE PUTS ITS RULING IN CONFLICT

WITH TWO DECADES OF THIS COURT’S

ESTABLISHMENT CLAUSE JURISPRUDENCE

The question of federal law posed by this case is an impor-

tant one left open in Lee v. Weisman, supra, and should be

decided by this Court. What is the constitutionality of formulaic

civic rituals which invoke the Deity, such as the Pledge of Alle-

giance? In Barnette, supra, this Court decided that no one can be

forced to recite the Pledge. That much is clear. But there has

been no (post-Lemon) case on any level of the federal judiciary

(other than the case sub judice) testing the validity of the revised

(“under God’’) version of the Pledge. This case squarely presents

the question. Its answer has baffled no less an historic figure than

Justice Brennan, who, in Marsh v. Chambers, 463 U.S. 783 (1983)

opined that “I frankly do not know what should be the proper

disposition of features of our public life such as ‘God save the

United States and this Honorable court’, ‘In God We Trust’ [and]

‘One Nation Under God’. . . ” 463 U.S. at 818, (dissenting

opinion). Resolution of the issue by this Court would not only

ee |

provide an answer to an important question of federal law, but

would also more generally help define the proper boundaries of

the Establishment Clause.

The Court of Appeals found the Pledge constitutional over

the objections of a dissenting youngster and in the schoolhouse

setting. Petitioners submit that the Seventh Circuit’s ruling con-

flicts with the principles of law enunciated in Lee v. Weisman.

In Lee, this Court began its analysis, as the court below

should have, with an acknowledgement that “there are height-

ened concerns with protecting freedom of conscience from sub-

tle coercive pressure in the elementary and secondary public

schools [citations omitted]”. 505 U.S. at ___., 120 L.Ed.2d at

484. The Court found that school control of the graduation

ceremony places pubic 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” [d. at 484.

Significantly, the focus of the Court’s opinion was on the

“school-age children who objected”. Id at 483. The Court deter-

mined that the social and peer pressure to participate in a state-

led group exercise with religious overtones was constitutionally

intolerable. It declared:

“Tt is of little comfort to a dissenter [ | to be told that for

her the act of standing or remaining in silence signifies

mere respect rather than participation. What matters is

that, given our social conventions, a reasonable dis-

senter in this milieu could believe that the group exer-

cise signified her own participation or approval of it.

Finding no violation under these circumstances would

place objectors in the dilemma of participating, with all

that implies, or protesting. We do not address whether

that choice is acceptable if the affected citizens are

mature adults, but we think the State may not, consis-

tent with the Establishment Clause, place primary and

secondary school children in this position.

505 US. at , 120 L.Ed.2d at 484-85.

These principles apply with equal force to the instant case.

Here, a first grader was put to the terrible 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 is anathema to his “religious” beliefs. 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 Petitioner.

It should not matter that the group activity was denomi-

nated 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 Establish-

ment Clause reaches beyond state sponsorship of “prayer’’. In

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

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 ail — religious

denominations as when it attempts to inculcate specific

religious doctrines. If this identification conveys a mes-

sage of government cndorsement of disapproval of

religion, a core purpose of the Establishment Clause is

violated.”

What is the Pledge but a grand declaration that this Nation,

that the flag, that patriotism, are all inextricably intertwined with

the belief in God? It is simply disingenuous to suggest that no

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

a ee

patriotic Pledge of Allegiance. Nor can it seriously be asserted

that first graders have the facility to perceive the subtle distinc-

tions between “patriotic” endorsement of God, said to be per-

mitted by the Founders, and outright (and unconstitutional)

endorsement of God. Whatever merits ‘““ceremonial deism” may

have as a rationale for escaping the strictures of the Establish-

ment Clause in an adult setting, surely the doctrine has no place

in the schoolhouse, and especially not in the first grade.

Under the principles adhered to by this Court for over two

decades, beginning with Lemon v. Kurtzman, supra, and culmi-

nating in Lee v. Weisman, the Pledge is clearly an unconstitu-

tional symbolic union of God and State which conveys an

unmistakable impression of government endorsement of religion

over non-religion. Additionally, as explained by this court in Lee,

the state-ordered group recital of the Pledge places the minor

Petitioner here in the untenable position of succumbing to peer

pressure or facing certain ostracism. The decision of the Seventh

Circuit below fails to respect this court’s precedents preventing

such results, and should be reviewed by writ of certiorari.

CONCLUSION

Petitioners urge this Court to issue a writ of certiorari to the

United States Court of Appeals for the Seventh Circuit to ensure

lower court obedience to this Court’s precedents, to protect

Lemon v. Kurtzman and its progeny, and because this case

presents an important federal question which has not been, but

should be, decided by this Court.

Respectfully submitted,

RICHARD GROSSMAN

Counsel of Record

Dannen, Crane, Heyman & Simon

135 S. LaSalle

Suite 1540

Chicago, Illinois 60603

(312) 641-6777

February 18, 1993

A-1

APPENDIX A

In the

United States Court of Appeals

Hor the Seventh Circuit

No. 91-1684

ROBERT IAN SHERMAN, for himself and as natural guardian

for RICHARD HARRY SHERMAN, a minor son,

Plaintiffs-Appellants,

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 88 C 9205—Ann Claire Williams, Judge.

ARGUED JANUARY 24, 1992—DeciDED NoveMBER 20, 1992

Before CUMMINGS, EASTERBROOK, and MANION, Circuit

Judges.

EASTERBROOK, Circuit Judge. “{N]o official, high or

petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.”

West Virginia State Board of Education v. Barnette, 319

U.S. 624, 642 (1943). A state therefore may not compel

any person to recite the Pledge of Allegiance to the flag.

On similar grounds, Wooley v. Maynard, 430 U.S. 705

(1977), adds that a state may not compel any person to

display its slogan. Does it follow that a pupil who objects

2 No. 91-1684

to the content of the Pledge may prevent teachers and

other pupils from reciting it in his presence? We conclude

that schools may lead the Pledge of Allegiance daily, so

long as pupils are free not to participate.

In 1979 Illinois enacted this statute: ‘The Pledge of Al-

legiance shall be recited each school day by pupils in ele-

mentary educational institutions supported or maintained

in whole or in part by public funds.” Ill. Rev. Stat. ch.

122 427-3. We held in Palmer v. Board of Education, 603

F.2d 1271 (7th Cir. 1979), that states may require teachers

to lead the Pledge and otherwise communicate patriotic

values to their students. The right of the school board

to decide what the pupils are taught implies a correspond-

ing right to require teachers to act accordingly. See also

Webster v. New Lenox School District, 917 F.2d 1004 (7th

Cir. 1990). Richard Sherman, who attends elementary school

in Wheeling Township, Ilinois, and his father Robert chal-

lenge the premise of Palmer that schools may employ a

curriculum including the Pledge of Allegiance among its

exercises. Since 1954 the Pledge has included the words

“under God,” 68 Stat. 249, which the Shermans contend

violates the establishment and free exercise clauses of the

first amendment. The full Pledge is: “I pledge allegiance

to the Flag of the United States of America, and to the

Republic for which it stands, one Nation under God, in-

divisible, with liberty and justice for all.” 36 U.S.C. §172.

The district court’s first opinion, 714 F. Supp. 932 (N.D.

Ill. 1989), concluded that the Shermans have standing to

challenge the recitation of the Pledge but expressed doubt

that a third plaintiff—the Society of Separationists, Inc.,

a group of atheists of which Sherman pére is president—is

entitled to litigate. The court denied defendants’ motion

to dismiss but invited plaintiffs to amend their complaint.

Following the amendment, the court dismissed the So-

ciety as a party. 745 F. Supp. 1371 (1990). The Society

has not appealed, so we do not mention it again. The new

A-3

No. 91-1684 3

complaint added the Attorney General of Illinois as a de-

fendant. The Attorney General reiterated the contention

that the Shermans lack standing; the court disagreed. The

Attorney General also contended that the district court

should abstain and that the challenge is unripe because

Richard has not been penalized for his refusal to recite

the Pledge. The court rejected both arguments. It did not

address the Attorney General’s submission that the elev-

enth amendment bars a suit against that office (the Sher.

mans did not name the incumbent as a party in his per-

sonal capacity).

A third opinion, 758 F. Supp. 1244 (1991), granted the

defendants’ motions for summary judgment. The court

held that the state’s pledge law satisfies all three elements

of the approach to the establishment clause in Lemon v.

Kurtzman, 403 U.S. 602 (1971): it has a secular purpose,

does not advance religion, and does not entangle the gov-

ernment in religion. Coerced readings of the Pledge would

pose difficulties under the free speech and free exercise

clauses, but the court concluded that the statute is not

coercive as written or in application. Although {27-3 says

that the Pledge “‘shall be recited each school day by pupils”,

it does not say by ail pupils, and the absence of any pen-

alty implies that the pupils are entitled to keep silent.

Affidavits from the superintendent of schools, the princi-

pal of Richard’s school, and Richard’s first grade teacher

all stated that no pupil was compelled to recite the Pledge,

to stand during the Pledge or place his hand over his

heart, or to leave if he would not join in, and that no

one was penalized in any way for remaining silent and

seated. Contrast Lipp v. Morris, 579 F.2d 834 (3d Cir.

1978) (an obligation to stand at attention while other stu-

dents recite the Pledge is forbidden compulsion); Goetz

v. Ansell, 477 F.2d 636 (2d Cir. 1973) (same). Any peer

pressure to conform that Richard may have experienced,

the court believed, does not justify silencing pupils who

are willing to recite the Pledge.

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4 No. 91-1684

Defendants renew their jurisdictiorial arguments. The

Shermans disdained to address them, asserting that only

defendants who file cross-appeals may contest the jurisdic-

tion of the district court. The Shermans overlook the en-

during principle that judges must consider jurisdiction as

the first order of business, and that parties must help the

courts do so. Philbrook v. Glodgett, 421 U.S. 707, 720-22

(1975); Fusan v. Steinberg, 419 U.S. 379, 387 n.12 (1975);

id. at 390-91 (Burger, C.J., concurring). Nothing can justify

adjudication of a suit in which the plaintiff lacks standing

or there is some other obstacle to justiciability. Defen-

dants fulfilled their duties to the court, while the lawyer

representing the plaintiffs slighted his.

The eleventh amendment deprives federal courts of ju-

risdiction to consider most suits against states. State agen-

cies or officials sued in their official capacity are “‘the

state” for this purpose, Will v. Michigan Department of

State Police, 491 U.S. 58 (1989); Kentucky v. Graham, 473

U.S. 159 (1985), unless the plaintiff satisfies the require-

ments of Ex parte Young, 209 U.S. 123 (1908). See also

Hafer v. Melo, 112 S. Ct. 358 (1991). Plaintiffs sued the

Attorney General of Illinois in his official capacity only,

seeking both damages and a declaratory judgment that

427-3 violates the Constitution. The eleventh amendment

cleanly bars the award of damages in an official-capacity

suit. Whether it also bars declaratory relief depends on

the theory of liability. Plaintiffs have not articulated any

theory under which E'x parte Young supports a suit against

the Attorney General, who has never threatened the Sher-

mans with prosecution and as far as we can tell has no

authority to do so. (States’ Attorneys, elected in each

county, are the public prosecutors in Illinois. Paragraph

27-3 does not prescribe a penalty, so these officials also

have nothing to do with the subject.) Plaintiffs apparent-

ly named the office of the Attorney General in an effort

to obtain a judgment binding the State of Illinois as an

entity, a step that Congress did not authorize when enact-

ing 42 U.S.C. §1983 and that the eleventh amendment

A-5

No. 91-1684 5

does not permit in the absence of such authorization. See

Fitzpatrick v. Bitzer, 427 U.S. 445 ( 1976). The Attorney

General must be dismissed as a party.

Defendants’ other jurisdictional objections have less punch.

Richard Sherman, obliged by the school-attendance laws

to be present during the Pledge and the potential object

of coercion to participate, has standing to challenge the

statute. Abington School District v. Schempp, 374 U.S.

203, 224 n.9 (1963). His father has derivative standing as

his guardian. The subject is ripe for adjudication. The

Pledge law is on the books, being enforced at Richard’s

school by daily recitation. That school officials do not com-

pel Richard to participate may bear on the merits but

does not make the subject less appropriate for decision.

Cf. Lee v. Weisman, 112 S. Ct. 2649 (1992) (adjudicating

a challenge to a prayer at a high school graduation, with

no Justice doubting justiciability).

Doctrines that counsel abstention do not imply that the

court lacks subject-matter jurisdiction. The defendants’

contention that the district court should have abstained

while awaiting clarification of the meaning of the state’s

law, if accepted, would require us to alter its judgment.

To obtain such an alteration, the defendants needed to file

appeals of their own. Federal Energy Administration, v.

Algonquin SNG, Inc., 426 U.S. 548, 560 n.11 ( 1976). See

Robert L. Stern, When to Cross-Appeal or Cross-Petition—

Certainty or Confusion?, 87 Harv. L. Rev. 763 (1974).

Now that the case has reached our court, certification

to the Supreme Court of Illinois would be the best way

to find out whether the state’s law requires each pupil

to recite the Pledge of Allegiance. Houston v. Hill. 432

U.S. 451, 470-71 (1987). None of the parties has asked us

to seek the views of the Supreme Court of Illinois. We

could do so on our own, but the reason the district judge

gave for not abstaining is an equally cogent reason for

our not certifying: “{?Naintiffs maintain that having the

Pledge led by the pzincipal daily is inherently coercive

and therefore violative of plaintiffs’ rights. Thus, even if

5 No. 91-1684

an Illinois court interprets the statute to exempt children

who cannot say the Pledge for religious or political rea-

sons, the court would still have to resolve the question

of whether school officials’ leading of the Pledge, pursuant

to the statute, results in unconstitutional coercion.” 745

F. Supp. at 1374. Circuit Rule 52 permits us to certify

a question of state law only when the answer ‘“‘will con-

trol the outcome” of the case. See also Rule 20 of the

Rules of the Supreme Court of Illinois (certification autho-

rized when the answer “may be determinative of the said

cause”’).

Although we could make the state court’s answer con-

trolling by first deciding all of the Shermans’ constitution-

al arguments, leaving only the meaning of state law un-

resolved, such a course invites advisory adjudication. Thus

the best course is to interpret the state law for ourselves.

We cannot rewrite a law in order to “save” it, Houston,

482 U.S. at 468-69; K-S Pharmacies, Inc. v. American

Home Products Corp., 962 F.2d 728, 730 (7th Cir. 1992);

American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 3382-

34 (7th Cir. 1985), affirmed without opinion, 475 U.S. 1001

(1986), but federal courts interpret state statutes in con-

stitutional cases no less than in cases under the diversity

jurisdiction. Planned Parenthood v. Casey, 112 S. Ct.

2791, 2822 (1992); Frisby v. Schultz, 487 U.S. 474, 483

(1988). No interpretation we announce will bind Illinois or

other school districts, see Kucharek v. Hanaway, 902 F.2d

513, 517 (7th Cir. 1990), but it will control how Wheeling

Township must treat Richard, which is all the Shermans

are entitled to.

Ill

If Illinois requires every pupil to recite the Pledge, then

Barnette scuttles the statute, and we need not consider

whether “under God” distinguishes the Pledge from other

patriotic exercises. Plaintiffs contend that the language

of 427-3—“The Pledge of Allegiance shall be recited each

school day by pupils in elementary educational institutions

A-7

No. 91-1684 7

supported or maintained in whole or in part by public

funds.”—is unambiguous and compulsory.

Defendants persuaded the district court that the lack of

a penalty for silence eliminates any compulsion, or at least

shows that the state legislature did not mean to require

children to recite the Pledge. True, there was a penalty

(expulsion from school) in Bornstie Yet other cases deal-

ing with readings, prayers, or periods of silence in the

classroom thought the absence of a formal penalty irrele-

vant. E.g., Engel v. Vitale, 370 U.S. 421 (1962); Abington

School District v. Schempp, 374 U.S. 203 (1963); Wallace

v. Jaffree, 472 U.S. 38 (1985); Lee v. Weisman, 112 S. Ct.

2649 (1992). Oliver Wendell Holmes looked to penalties

in order to see how the law affected those who regard

their own welfare exclusively. The Path of the Law, 10

Harv. L. Rev. 457, 460-61 (1897), reprinted in Collected

Legal Papers 167, 173 (1920). Many people obey laws just

because they represent the will of the majority expressed

through democratic forms. See Kurowski v. Krajewski,

848 F.2d 767, 774-75 (7th Cir. 1988). They revere law for

the sake of civility, harmony, and consideration of others—

values that schools try to inculcate. More: penalties may

be real (the displeasure of one’s teacher can be formidable)

even though not administered by judges. How ironic if

Richard Sherman’s first experience with law were to teach

him that the legal sanction expresses the full meaning of

a rule. Then the lesson of the Pledge of Allegiance would

be cynicism rather than patriotism. Looking at the law

through the lens of penalties is useful for many purposes,

but not when the task is to teach civic virtue.

What the law requires of principals, teachers, and pupils

depends on the language it contains rather than the penal-

ty it omits. And what 27-3 says is that the Pledge “shall

be recited each school day by pupils” in public schools.

Some pupils? Willing pupils? All pupils? It does not spe-

cify. If it means “all pupils” then it is blatantly unconstitu-

tional; if it means “willing pupils” then the most severe

constitutional problem dissolves. When resolving statutory

8 No. 91-1684

ambiguities, the Supreme Court of Illinois adopts readings

that save rather than destroy state laws. E.g., Country

Mutual Insurance Co. v. Knight, 40 Ill. 2d 423, 240 N.E.2d

612 (1968). Given Barnette, which long predated enactment

of this statute, it makes far more sense to interpolate ‘‘by

willing pupils” than “by all pupils.” School administrators

and teachers satisfy the “shall” ” requirement by leading the

Pledge and ensuring that at least some pupils recite. Lead-

ing the Pledge is not optional, see Palmer, but partici-

pating is. This makes sense of the statute without imput-

ing a flagrantly unconstitutional act to the State of Illinois.

This understanding is consistent with the practice in the

Wheeling schools. The superintendent of schools, the prin-

cipal of Riley School (which Richard attends), and his first

grade teacher when this suit began, all filed affidavits

stating that neither Richard nor any other pupil is com-

pelled to recite the Pledge, to place his hand over his

heart, to stand, or to leave the room while others recite.

Marilyn Barden, Richard’s teacher, averred that she brooks

no hazing of those who decline to participate, and that

she has never noticed any. The only contrary suggestion

comes from Robert Sherman’s affidavit, which states: ‘“De-

fendant Garrett, principal of the school attended by my

son, asks my son to stand with one hand over his heart and

participate with the other pupils in reciting the pledge.”

But as this affidavit does not reflect personal knowledge--

Robert Sherman does not say that he has ever been in

Richard’s class during the recitation or that he has heard

principal Garrett make such a demand—the district court

properly disregarded it. Robert does not even aver that

his son told him this, and Richard did not file an affidavit

of his own. Affidavits offered in opposition to motions for

summary judgment “shall be made on personal knowledge

{and] shall set forth such facts as would be admissible in

evidence”. Fed. R. Civ. P. 56(e). The same defect prevents

giving force to Robert Sherman’s assertion that Richard

was hassled by other children on the playground because

of his refusal to recite the Pledge. Children can be ex-

ceedingly cruel to one another, but the rancor (not in any

A-9

No. 91-1684 9

event attributable to the State of Illinois) must be estab-

lished by admissible evidence.

We have not overlooked some juicy tidbits of legislative

history that plaintiffs proffer. Senator Netsch spoke against

the adoption of 427-3, expressing a belief that the bill could

not coexist with Barnette. Senator Knuppel replied: ‘“‘it

amazes me that these people get up and read that kind

of garbage that Jackson [Justice Robert Jackson, author

of the majority opinion in Barnette] had there, his advise

[sic] from the Supreme Court, I rate just about as highly

as I do the advise [sic] from Congress.’”’ Senate Debates,

81st Illinois General Assembly, May 22, 1979, at 272. Sen-

ator Lemke then called for the election of federal judges

and added: ‘‘Maybe we ought to abolish the Supreme Court

and have a dictatorship like in Russia because in Russia

at least they say a pledge of allegiance to their own flag.”

Ibid. It is hard to believe that an elected official of I]li-

nois prefers totalitarian government to democracy under

law just because dictatorships employ more patriotic slo-

gans, which dictators may deem necessary to their suc-

cess. That two state senators are able to bring obloquy

upon themselves does not help us know whether 427-3

means ‘‘all pupils’ rather than “willing pupils”. Senator

Nimrod, the bill’s sponsor, treated the recitation as non-

compulsory. Jd. at 270-71. Statements on the floor of the

state’s lower chamber may be read either way. These un-

enlightening exchanges do not show that Illinois enacted

a law that would be stillborn under Barnette.

Notwithstanding the lack of penalties or efforts by teach-

ers to induce pupils to recite, there remains social pres-

sure to do so and a sense of exclusion when one’s beliefs

enforce silence during a ceremony others welcome. When

discussing the Pledge of Allegiance, four Justices remarked:

“{I}t borders on sophistry to Suggest that the ‘reasonable’

atheist would not feel less than a ‘full membef(r] of the

political community’ every time his fellow Americans re-

cited, as part of their expression of patriotism and love

for country, a phrase he believed to be false.” Allegheny

County v. Pittsburgh ACLU, 492 U-S. 573, 673 (1989)

ial

A-10

10 No. 91-1684

(Kennedy, J., joined by Rehnquist, C.J., and White &

Scalia, JJ.). Concerns of this kind, among others, led Jus-

tice Kennedy (this time speaking for a majority in Lee

v. Weisman) to treat prayer during a high school gradua-

tion as a form of compulsion, even though the student

may remain silent without overt penalty. Engel v. Vitale,

370 U.S. at 430-31, the first of the school-prayer cases,

oe a similar conclusion. We have postponed to Part

IV discussion the effect of ‘under God’’. But perhaps the

rationale of Barnette, when joined with the school-prayer

cases, equates sociai pressure with legal pressure. If as

Barnette holds no state may require anyone to recite the

Pledge, and if as the prayer cases hold the recitation by

a teacher or rabbi of unwelcome words is coercion, then

the Pledge of Allegiance becomes unconstitutional under

all circumstances, just as no school may read from a holy

scripture at the start of class.

As an analogy this is sound. As an understanding of the

first amendment it is defective—which was Justice Ken-

nedy’s point in Allegheny. The religion clauses of the first

amendment do not establish general rules about speech

or schools; they call for religion to be treated different-

ly. Recall that for now we are treating the Pledge as a

patriotic expression, even though the objections to public

patriotism may be religious (as they were in Barnette).

Patriotism is an effort by the state to promote its own

survival, and along the way to teach those virtues that

justify its survival. Public schools help to transmit those

virtues and values. Separation of church from state does

not imply separation of state from state. Schools are en-

titled to hold their causes and values out as worthy sub-

jects of approval and adoption, to persuade even though

they cannot compel, and even though those who resist

persuasion may feel at odds with those who embrace the

values they are taught.

Consider what a general assimilation of religion to patri-

otism and other values would mean for the public schools.

The majority in Lee remarked, 112 S. Ct. at 2657: “By

the time they are seniors, high school students no doubt

A-11

No. 91-1684 11

have been required to attend classes and assemblies and

to complete assignments exposing them to ideas they find

distasteful or immoral or absurd or all of these.” They

are required to read books promoting ideas they find wicked.

Sometimes their creed may teach that reading such ma-

terial is itself sinful. Canon law in the Roman Catholic

Church, and equivalent rules of other religions, restricts

the reading of books that misrepresent or undermine the

faith. See Dede A. Burke, What is the Index? (1952).

(The Catholic Church suspended publication of the Index

Librorum Prohibitorum in 1966 but did not abolish the

distinction between moral and immoral literature.) Cases

arising out of religious beliefs that particular books should

not be read include Mozert v. Hawkins County Board of

Education, 827 F.2d 1058, 1061-62 (6th Cir. 1987), and

Smith v. Mobile Board of School Commissioners, 827 F.2d

684 (11th Cir. 1987). See also Wisconsin. vy. Yoder, 406 U.S.

205 (1972). Students not only read books that question or

conflict with their tenets but also write essays about them

and take tests—questions for which their teachers prescribe

right answers, which the students must give if they are to

receive their degrees. The diversity of religious tenets in

the United States ensures that anything a school teaches

will offend the scruples and contradict the principles of

some if not many persons. The problem extends past gov-

ernment and literature t> the domain of science: the re-

ligious debate about heliocentric astronomy is over, but

religious debates about geology and evolution continue.

An extension of the school-prayer cases could not stop

with the Pledge of Allegiance. It would extend to the

ks, essays, tests, and discussions in every classroom.

A pupil who takes exception to the prescribed curriculum

of the public schools—whether the textbooks or the class

discussions or the civic ceremonies such as the Pledge of

Allegiance—is asserting a right to accommodation of his

political or religious beliefs. Humane government often

calls for accommodation: programs such as tuition vouch-

ers serve this interest without offending other constitu-

tional norms. Witters v. Washington Department of Ser-

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12 No. 91-1684

vices for the Blind, 474 U.S. 481 (1986). See also Michael

W. McConnell, The Selective Funding Problem: Abortions

and Religious Schools, 104 Harv. L. Rev. 989 (1991). But

see Zobrest v. Catalina Foothills School District, 963 F.2d

1190 (9th Cir. 1992), cert. granted, No. 92-94 (Oct. 5, 1992).

Government nonetheless retains the right to set the cur-

riculum in its own schools and insist that those who can-

not accept the result exercise their right under Pierce v.

Society of Sisters, 268 U.S. 510 (1925), and select private

education at their own expense. The private market sup-

ports a profusion of schools, many tailored to religious

or cultural minorities, making the majoritarian curriculum

of the public schools less oppressive. We agree with Judge

Boggs that “school boards may set curricula bounded only

by the Establishment Clause” even though pupils may

find the books and classroom discourse offensive or im-

moral. Mozert, 827 F.2d at 1080 (concurring opinion). By

remaining neutral on religious issues, the state satisfies

its duties under the free exercise clause. Employment

Division v. Smith, 494 U.S. 872 (1990). All that remains

is Barnette itself, and so long as the school does not com-

pel pupils to espouse the content of the Pledge as their

own belief, it may carry on with patriotic exercises. Ob-

jection by the few does not reduce to silence the many

who want to pledge allegiance to the flag ‘‘and to the Re-

public for which it stands’’.

All of this supposes that the Pledge is a secular rather

than sectarian vow. Everything would be different if it

were a prayer or other sign of religious devotion. Does

“under God” make the Pledge a prayer, whose recitation

violates the establishment clause of the first amendment?

The district court trudged through the three elements

identified by the Court in Lemon, concluding that the

Pledge passes every test. Of course Lemon was not de-

vised to identify prayer smuggled into civic exercises, and

its status as a general-purpose tool for administering the

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No. 91-1684 13

establishment clause is in doubt. Rumblings of discontent

are frequent. The Court heard Lee v. Weisman in large

part to reconsider Lemon, and Lee concluded without re-

newing Lemon’s lease. The majority opinion reserved deci-

sion on the future of Lemon. 112 S. Ct. at 2655. Three

members of the majority signed an opinion employing

Lemon, 112 S. Ct. at 2663-64 (Blackmun, J., joined by

Stevens & O’Connor, JJ.), but one member of this group

has expressed doubts. Aguilar v. Felton, 473 U.S. 402,

426-30 (1985) (O’Connor, J., dissenting). The author of the

majority opinion in Lee has disparaged Lemon, see Al-

legheny, 492 U.S. at 655-56 (opinion of Kennedy, J.). The

fifth member of the majority in Lee wrote a concurring

opinion that did not rely on or endorse Lemon. 112 S.

Ct. at 2667-78 (Souter, J.). And four Justices proposed to

jettison Lemon forthwith. 112 S. Ct. at 2685 (Scalia, J..

dissenting, joined by Rehnquist, C.J., and White & Thomas,

JJ.). So we are not disposed to resolve this case by parsing

Our approach is more direct. Must ceremonial references

in civic life to a deity be understood as prayer, or support

for all monotheistic religions, to the exclusion of atheists

and those who worship multiple gods? You can’t under-

stand a phrase such as “Congress shall make no law re-

specting an establishment of religion” by syllogistic rea-

soning. Words take their meaning from social as well as

textual contexts, which is why “a page of history is worth

a volume of logic.” New York Trust Co. v. Eisner, 256

U.S. 345, 349 (1921) (Holmes, J.). Unless we are to treat

the founders of the United States as unable to understand

their handiwork (or, worse, hypocrites about it), we must

ask whether those present at the creation deemed cere-

monial invocations of God as “establishment.” They did

me “: Allegheny, 492 U.S. at 671-73 (opinion of Ken-

nedy, J.).

James Madison, the author of the first amendment, is-

sued presidential proclamations of religious fasting and

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14 No. 91-1684

thanksgiving.! Thomas Jefferson, who refused on separa-

tionist grounds to issue thanksgiving proclamations,? none-

theless signed treaties sending ministers to the Indians.*

The tradition of thanksgiving proclamations began with

President Washington, who presided over the constitution-

al convention.* From the outset, witnesses in our courts

have taken oaths on the Bible, and sessions of court have

opened with the cry “God save the United States and

this honorable Court.” Jefferson’s Declaration of Indepen-

dence contains multiple references to God (for example:

‘We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator

with certain unalienable Rights, that among these are Life,

Liberty, and the pursuit of Happiness.’’). When Madison

1 See Leonard W. Levy, The Establishment Clause: Religion and

the First Amendment 100 (1986). In 1817, after leaving office, Mad-

ison confessed that these proclamations violated the principles of

separation for which he stood but pleaded “the legal aphorism de

minimis non curat lex.” Elizabeth Fleet (ed.), Madison’s ‘Detached

Memoranda”, 3 William & Mary Quarterly 534, 559 (1946), reprinted

in Philip B. Kurland & Ralph Lerner (eds.), 5 The Founders’ Con-

stitution 104 (1987).

2 See his letter to Rev. Samuel Miller, in 5 The Founders’ Con-

stitution 98-99.

3 The treaties are collected in Robert L. Cord, Seperation of

<a" and State: Historical Fact and Current Fiction 261-70

1 .

4 E.g., the Proclamation of October 3, 1789, which begins: ‘‘Where-

as it is the duty of all nations to acknowledge the providence of

Almighty God, to obey His will, to be grateful for His benefits,

and humbly to implore His protection and favor” and then sets

Thursday, November 26, 1789, as a day “‘to be devoted .. . to

the service of that great and glorious Being who is the beneficent

author of all the good that was, that is, or that will be; that we

may then all unite in rendering unto Him our sincere and humble

thanks for His kind care”, and much more in the same vein. 5

The Founders’ Constitution 94. Washington issued this proclama-

tion on the joint recommendation of both Houses of Congress,

ibid., which only days before (on September 25) had sent the text

of the establishment clause to the states for ratification.

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No. 91-1684 15

and Jefferson wrote their famous declarations supporting

separation of church and state, they invoked the name

of the Almighty in support.

The Founders’ tradition has endured. Presidents still

issue proclamations of thanksgiving. Details such as the

Pledge of Allegiance and the motto on the coinage testify

to its force. The Pledge tracks Lincoln’s Gettysburg Ad-

dress, which ends with a wish “that this nation, under

God, shall have a new birth of freedom and that govern-

ment of the people, by the people, for the people, shall

not perish from the earth.’”’ The second inaugural address

of that great statesman and poet concludes: “With malice

toward none; with charity for all; with firmness in the

right, as God gives us to see the right, let us strive on to

finish the work we are in; to bind up the nation’s wounds;

to care for him who shall have borne the battle, and for

his widow, and his orphan—to do all which may achieve

and cherish a just and lasting peace among ourselves, and

with all nations.” Pupils who study this address with care

will find 14 references to God among its 699 words.

When it decided Engel v. Vitale, the first of the school-

prayer cases, the Court recognized this tradition and dis-

tinguished ceremonial references to God from supplications

for divine assistance: “There is of course nothing in the

decision reached here that is inconsistent with the fact

5 Here is the preamble to Virginia’s Act for Establishing Reli-

gious Freedom, which Jefferson drafted in 1779 (and the state en-

acted in 1785): “Well aware that the opinions and belief of men

depend not on their own will, but follow involuntarily the evidence

proposed to their minds, that Almighty God hath created the mind

free, and manifested his Supreme will that free it shall remain,

by making it altogether insusceptible of restraint: That all attempts

to influence it by temporal punishments or burthens, or by civil

incapacitations, tend only to beget habits of h risy and mean-

ness, and are a departure from the plan of the holy author of our

religion, who being Lord both of body and mind, yet chose not

to propagate it by coercions on either, as was in his Almighty

power to do, but to extend it by its influence on reason alone”.

° The Founders’ Constitution 77.

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16 No. 91-1684

that school children and others are officially encouraged

to express love for our country by reciting historical doc-

uments such as the Declaration of Independence which

contain references to the Deity or by singing officially es-

poused 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 resem-

blance to the unquestioned religious exercise that the

State of New York has sponsored in this instance.’’ 370

U.S. at 485 n.21. To the same effect see Schempp, 374

U.S. at 306-08 (Goldberg, J.. joined by Harlan, J., concur-

ring). Lynch v. Donnelly, 465 U.S. 668, 676 (1984), includes

the Pledge in a list of civic exercises with religious con-

notations, which the Court implied are permissible. See

also id. at 693 (O’Connor, J., concurring), expressing the

view that Thanksgiving, ‘In God We Trust” and similiar

“government acknowledgments of religion serve . . . the

legitimate secular purposes of solemnizing public occasions

. and encouraging the recognition of what is worthy of

appreciation in society. For that reason, and because of

their history and ubiquity, [these] practices are not under-

stood as conveying approval of particular religious beliefs.”

Justice Brennan, among the most stalwart of separa-

tionists, expressed similar thoughts when concurring in

Schempp, 374 U.S. at 303-04:

[W]e have simply interwoven the motto [In God We

Trust] so deeply into the fabric of our civil polity that

its present use may well not present that type of in-

volvement which the First Amendment prohibits. This

general principle might also serve to insulate the vari-

ous patrictic exercises and activities used in the pub-

lic schools and elsewhere which, whatever may have

been their origins, no longer have a religious purpose

or meaning. The reference to divinity in the revised

pledge of allegiance, for example, may merely recog-

nize the historical fact that our Nation was believed

to have been founded “under God.” Thus reciting the

pledge may be no more of a religious exercise than

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No. 91-1684 17

the reading aloud of Lincoln’s Gettysburg Address,

which contains an allusion to the same historical fact.

By the time of Marsh v. Chambers, 463 U.S. 783, 818

(1983) (dissenting opinion), Justice Brennan was equivocal:

“I frankly do not know what should be the proper disposi-

tion of features of our public life such as ‘God save the

United States and this Honorable Court,’ ‘In God We

Trust,’ ‘One Nation Under God,’ and the like. I might

well adhere to the view expressed in Schempp that such

mottoes are consistent with the Establishment Clause, not

because their import is de minimis, but because they have

lost any true religious significance.”” In Lynch, 465 U.S. at

716 (dissenting opinion), Justice Brennan concluded that “the

reference to God contained in the Pledge of Allegiance

to the flag can best be understood, in Dean Rostow’s apt

hrase, as a form of ‘ceremonial deism,’ protected from

stablishment Clause scrutiny chiefly because [it has] lost

through rote repetition any significant religious content.”

(Footnote omitted.) This court adopted such an approach

when observing in ACLU v. St. Charles, 794 F.2d 265,

271 (7th Cir. 1986), that both “In God We Trust” and

Christmas trees are secular, having lost their original re-

ligious significance. See also Allegheny, 492 U.S. at 616

(opinion of Blackmun, J.).

An outcry in dissent that one or another holding logical-

ly jeopardizes the survival of this tradition always pro-

vokes assurance that the majority opinion carries no such

hae Engel was the first of these, and Allegheny, 492

.S. at 602-03, the most recent: “Our previous opinions

have considered in dicta the motto and the pledge, char-

acterizing them as consistent with the proposition that the

government may not communicate an endorsement of re-

ligious belief. . . . We need not return to the subject of

‘ceremonial deism,’ . . . because there is an obvious dis-

tinction between créche displays and references to God

in the motto and the pledge.” Plaintiffs observe that the

Court sometimes changes its tune when it confronts a sub-

ject directly. True enough, but an inferior court had best

respect what the majority says rather than read between

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18 No. 91-1684

the lines. If the Court proclaims that a practice is con-

sistent with the establishment clause, we take its assur-

ances seriously. If the Justices are just pulling our leg,

let them say so.

The judgment of the district court with respect to the

Attorney General of Illinois is vacated, and that portion

of the case is remanded with instructions to dismiss for

want of jurisdiction. In all other respects the judgment

is affirmed.

MANION, Circuit Judge, concurring. I concur with the

court’s fine opinion and conclusion that reciting the Pledge

of Allegiance does not offend the establishment clause. I

write separately to emphasize that we need not totally

denude the Pledge by reducing its language to the lowest

common denominator of ‘ceremonial deism”’ as favored

by Justice Brennan. A civic reference to God does not

become permissible under the First Amendment only when

it has been repeated so often that it is sapped of religious

significance. Such an approach implies that phrases like

“in God we trust” or “under God”, when initially used on

American coinage or in the Pledge of Allegiance, violated

the Establishment Clause because they had not yet been

rendered meaningless by repetitive use. As this court

shows, the Founders demonstrate by their behavior that

the First Amendment was not intended to prohibit states

from sanctioning ceremonial invocations of God. Such state

action simply does not amount to an establishment of

religion.

Another problem with the concept of “ceremonial deism”’

is that it selects only religious phrases as losing their

significance through rote repetition. Why only “under

God”? Why not “indivisible’’, “liberty and justice for all’’?

Do not these equally repeated phrases also lose their

meaning under the logic of “‘ceremonial deism’’? The an-

swer, quite simply, is that a court cannot deem any words

A-19

No. 91-1684 19

to lose their meaning over the passage of time. Each term

used in public ceremony has the meaning intended by the

term.

There is a significant difference in a result which strikes

down the Pledge as an endorsement of religion, and one

which leaves the Pledge intact, accompanied by the offi-

cial pronouncement that it is meaningless. While under

the first alternative the Pledge is prohibited from civic

functions, under the second alternative the Pledge is al-

lowed, and people are free to ignore the pronouncement

of this court, and recite the Pledge with any degree of

meaning they desire.

There is no need, however, to apply either alternative.

The Pledge of Allegiance with all of its intended mean.

ing does not effectuate an establishment of religion. If

legislative prayer based upon the Judeo-Christian tradi-

tion is permissible under Marsh v. Chambers, 463 U.S.

783, 103 S.Ct. 3330 (1983), and a Christmas nativity scene

erected by a city government is permissible under Lynch

v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355 (1984), then cer-

tainly the less specific reference to God in the Pledge of

Allegiance cannot amount to an establishment of religion.

We need not drain the meaning from the reference to

reach this conclusion.

A true Copy:

Teste:

SODAS SOROS ORS SSSSSSCSSSSSOSSSSESSSSSOSSTOSOCESSeSOOeoSes cece

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—11-20-92

B-1

APPENDIX B

IN THE

United States District Court

for the Northern District

of Illinois

Eastern Division

ROBERT IAN SHERMAN, for himself and

as natural guardian for RICHARD

HARRY SHERMAN, a minor son,

Plaintiffs,

COMMUNITY CONSOLIDATED SCHOOL

DISTRICT 21 OF WHEELING TOWNSHIP,

LLOYD DESCARPENTRIE, School

District Superintendent, and Dr.

FERNE GARRETT, Principal of Riley

School, individually and as

representatives of the STATE OF

ILLINOIS, and NEIL F. HARTIGAN,

Attorney General of the State of

Illinois,

Case No. 88 C 9205

Defendants. |

MEMORANDUM OPINION AND ORDER

Plaintiffs Robert Sherman and his minor son Richard Sher-

man are atheists and they allege that the

Illinois statute which

provides for the daily recitation of the Pledge of Allegiance in

public elementary schools! violates their rights under the First

and Fourteenth Amendments to the Constitution. Mr. Sherman

' Til. Rev. Stat. ch. 122, 27-3 provides, in part, “The Pledge of Allegiance

shall be recited each school day by pupils in eleme

ntary educational institu-

tions supported or maintained in whole or in part by public funds.”

B-2

filed a two-count complaint against the school district in which

his son’s school is located, the school district superintendent, the

principal of his son’s school, and the Illinois Attorney General

secking to have the statute declared unconstitutional and

requesting monetary damages from the defendants.? Mr. Sher-

man and defendant Attorney General Hartigan filed cross-

motions for summary judgment regarding Counts I and II.

Defendants School District 21, Superintendent Descarpentric

and Principai Garrett (“the school defendants”) filed a motion

to dismiss Count { and a motion for summary judgment on

Count II. For the following reasons, the court denies the school

defendants’ motion to dismiss Count I, denies plaintiffs’ motion

for summary judgment on Counts I and II and grants defendant

Hartigan’s motion for summary judgment on Counts I and II.

The granting of defendant Hartigan’s motion for summary judg-

ment renders moot the school defendants’ motion for summary

judgment on Count II.

Motion to Dismiss Count I

In Count I of the second amended complaint, plaintiffs

seek a declaratory judgment that the Illinois pledge law is uncon-

stituional because it violates the Establishment Clause and the

Free Exercise Clause of the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment. !n Count I

plaintiffs also seek a permanent injunction against all defendants

to “restrain[ ] defendants from compelling adherence to” the

Illinois pledge law. Re-Amended Complaint, Count I, prayer for

Relief, Para. 2. Defendants School District 21, Superintendent

Lloyd Descarpentrie and Principal Ferne Garrett maintain that

2 The defendants previously filed motions to dismiss and the court

denied the motions. See Sherman, et al. vy. Community Consolidated School

District 21 of Wheeling Township, et al., 714 F. Supp. 932 (N.D. Ill. 1989)

(denying motion to dismiss of defendants School District 21, Descarpentrie

and Garrett) and Sherman, et al. v. Community Consolidated School District

21 of Wheeiing Township, et al., 745 F. Supp. 1371 (N.D. Ill. 1990) (denying

defendant Hartigan’s motion to dismiss).

ee eee voneey

B-3

Count I should be dismissed against all the defendants except

defendant Hartigan because defendant Hartigan is the only

defendant with the authority to enforce the statute. See Motion

to Dismiss Count I at 2. See also, Koehler v. Ogilvie, 53 FR.D. 98,

102 (N.D. Ill. 1971) (“officers of a state who are clothed with

some duty in regard to the enforcement of the laws of the

state . . . may be enjoined by a federal court” from enforcing

an unconstitutional statute), aff'd, 405 U.S. 906 (1971).

While the defendants are correct that the Attorney General

or the State’s Attorney are normally the officials charged with

enforcing statutes, Mr. Sherman alleges in the complaint that

defendants Garrett and Descarpentrie, on behalf of School Dis-

trict 21, enforce the pledge statute in his son’s school. For exam-

ple, Mr. Sherman alleges that Principal Garrett asks his son to

participate in the daily pledge, that none of the defendants

advise his son of his right not to participate, and that defendants

Descarpentrie and Garrett have supervisory responsibilities and

policymaking powers in the district and in his son’s school. See

Re-Amended Complaint, Paragraphs 8, 11 and 23. On a motion

to dismiss, the court is obligated to take the allegations in the

complaint as true. Therefore, the court finds that based on plain-

tiffs’ allegations that all defendants enforce the statute in issue,

all defendants are properly named in Count I. The court denies

the motion of School District 21 and defendants Descarpentrie

and Garrett to dismiss Count I against them.

Motions for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that a

motion for summary judgment should be granted “if the plead-

ings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Plaintiffs and defen-

dant Hartigan, by filing cross-motions for summary judgment,

represent that there are no genuine issues of material fact for

trial and that the issue of whether the Illinois pledge statute is

B-4

constitutional can be decided by the court as a matter of law. As

noted above, plaintiffs allege that the statute is unconstitutional

because it violates the Establishment Clause and the Free Exer-

cise Clause of the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment. The court will address

each of these contentions in turn.

Establishment Clause

In its first opinion in this case, the court discussed the

viability of plaintiffs’ claim that the Illinois pledge statute vio-

lates the Establishment Clause of the First Amendment to the

Constitution. See Sherman, 714 F. Supp. at 934-36. The court

noted that a case from another circuit specifically held that the

recital of the pledge of allegiance in a public school does not

violate the Establishment Clause. See Smith v. Denny, 280 F.

Supp. 651 (E. D. Ca. 1968), appeal dismissed, 417 F.2d 614 (9th

Cir. 1969). The court also cited cases holding that neither the

singing of the national anthem in public school nor the use of the

motto “In God We Trust” on coins violates the Establishment

Clause. See Sheldon v. Fannin, 221 F. Supp. 766 (D. Ariz. 1963);

Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); Hall vs.

Bradshaw, 630 F.2d 1018 (4th Cir. 1980) (in dicta the court stated

that “[rjeferences to the Deity in our ceremonies and on our

coinage and seals do not violate the Establishment Clause

because they merely reflect this fact of our history and no longer

have any potentially entangling theological significance’’), cert.

denied, 450 U.S. 965 (1981). Finally, the court stated that

although the U.S. Supreme Court has not expressly ruled on

whether a pledge statute like the one adopted in Illinois violates

the Establishment Clause, “[t}he Court has expressed its implicit

approval of the Pledge . . . ” Sherman, 714 F. Supp. at 936.

Based on this review of the case law, the court stated that “the

failure of the plaintiffs’ Establishment Clause claim is all but a

foregone conclusion.” Jd. at 935.

However, the court did not dismiss plaintiffs’ Establishment

Clause claim pursuant to Fed. R. Civ. p. 12(b)(6) because to do

B-5

so, the court would have had to examine documents outside the

pleadings, and that is forbidden in the context of a motion to

dismiss. Now that the court has been presented with motions for

summary judgment, the court may look at documents outside the

pleadings and perform the necessary analysis to decide whether

the Illinois pledge statute violates the Establishment Clause of

the First Amendment. In performing this analysis, the court will

use the test developed in Lemon v. Kurtzman, 403 U.S. 602

(1971), for determining whether a statute comports with the

Establishment Clause. The three elements of the test are as

follows:

First, the statute must have a secular legislative pur-

pose; second, its principal or primary effect must be

one that neither advances nor inhibits religion; finally,

the statute must not foster an excessive government

entanglement with religion’ [citations omitted].

Id. at 612-13.

The court finds that there are no genuine issues of material

fact as to whether the Illinois pledge law passes all three prongs

of the Lemon test. First, the legislature adopted the law for the

secular purpose of instilling patriotic values in elementary school

students. Plaintiffs point to the comments of one legislator to try

to show that the pledge law had a religious purpose. Senator

Mitchler stated,

You should teach your children to pray and you should

teach your children to respect your Country. For God

and country, because that’s the basis on which this

nation was founded. I think this is a training period in

grades one through six and I’d even be having some

sort of a prayer in the schools and... and I don’t

think that that’s being overburdensome or anything

because I think it’s teaching them patriotism and I

don’t see anything wrong with that . . . to be able to

stand up and recite the Pledge and have a prayer . . .

B-6

Plaintiffs’ Memo. in Support of Motion for Summary Judgment

at 6. However, Senator Mitchler was the only legislator who tried

to link the pledge and prayer. Moreover, his comments about

prayer in school are not relevant to the purposes of the pledge

statute because the statute does not provide for prayer in school.

At most, these comments show that if given the chance, it seems

this Senator would vote for an unconstitutional law authorizing

prayer in the public schools.

In contrast to Senator Mitchler’s comments, the sponsors of

the pledge law, Senator Nimrod and Representative Pullen,

stated several times that the purpose of the law was to instill

patriotic concern and knowledge of American ideals in elemen-

tary school students. See e.g., Ill. Gen. Assembly, Senate Floor

Debates, May 22, 1979, pp. 273, 275; June 28, 1979, p. 92; House

Floor Debates, June 25, 1979, p. 65.° The secular, patriotic pur-

pose of the law is clear when one examines the statute as a whole.

The statute not only requires the pledge to be recited daily, but

also requires that students be taught and tested on the principles

enunciated in the American Declaration of Independence, the

U.S. Constitution and the Constitution of the State of Illinois.

The statute also provides that students must learn about the

proper use and display of the American flag, and voting methods.

In sum, the text of the statute and its legislative history reveal

that the purpose of the pledge law is to teach secular, patriotic

values and not religious values.

The statute also passes the second prong of the Lemon test

because the primary effect of the statute neither advances nor

> The court notes that there was much heated debate in the legislature

over whether the statute as written would be violative of the Free Exercise

Clause of the First Amendment because it could be interpreted to mandate

the recital of the pledge. The court will discuss this issue when it addresses

plaintiff's Free Exercise claim. However, the issue of compulsion is not

relevant when deciding whether a statute has a secular purpose in compli-

ance with the Establishment Clause. See Engel v. Vitale, 370 U.S. 421, 430

(1962) (“The Establishment Clause . . . is violated by the enactment of

laws which establish an official religion whether these laws operate directly

to coerce non-observing individuals or not.”).

eee meets

Droste

;

B-7

inhibits religion. As noted above, the primary effect of the stat-

ute is to teach students about the principles under which our

government operates and not to advance any particular religious

beliefs. The recital of the pledge, like the singing of the National

Anthem, “‘is not a religious but a patriotic ceremony, intended to

inspire devotion to and love of country. Any religious references

therein are incidental and expressive only of the faith which as a

matter of historical fact has inspired the growth of the nation.”

Sheldon, 221 F. Supp. at 774.

Finally, the statute passes the third part of the Lemon test

because it does not cause excessive entanglement of government

with religion. The statute at issue in this case is a far cry from the

statute which the Lemon Court held would create an excessive

entanglement between church and state. In Lemon, the Court

examined two state statutes which authorized using public funds

to subsidize teachers who taught secular subjects in non-public

schools. The Court found that the statutes would cause excessive

entanglement with religion because the majority of the non-

public schools which would receive the funds were parochial

schools. Therefore, the state governments would have to con-

stantly monitor the programs to insure that public funds were not

being used for any religious purposes. In this case, the statute

requires the teaching of secular subjects in public, non-parochial

schools, so no entanglement with religion is involved. Based on

this analysis, the court finds as a matter of law that the Illinois

statute does not violate the Establishment Clause of the First

Amendment.

Free Exercise

Although the court held in its previous opinion that “the

failure of plaintiffs’ Establishment Clause claim [was] all but a

foregone conclusion,” the court went on to find that plaintiffs

had “stated a claim for violation of the Free Exercise Clause.”

Sherman, 714 F. Supp. at 935, 937. The court found that the

allegations in plaintiffs’ complaint that Richard Sherman was

B-8

told to recite the pledge daily by his principal, that he was embar-

rassed and faced sanctions when he refused, and that the lan-

guage of the statute was mandatory were sufficient to state a

claim that Richard Sherman was unconstitutionally coerced to

recite the pledge. /d. at 935. It should be noted that the court

gave plaintiffs’ complaint the “solicitude accorded to pro se

pleadings” because plaintiffs drafted and filed their complaint

before they obtained counsel. /d. at 933 n.1. Moreover, the court

did not consider any other documents, such as the school defend-

ants’ affidavits stating that Richard was free to remain seated

during the pledge, because a court cannot consider documents

eutside the pleadings on a motion to dismiss. In its second opin-

ion in this cause, in which the court considered defendant Harti-

gan’s motion to dismiss, the court reiterated its holding that

plaintiffs’ complaint was sufficient to state a claim under the Free

Exercise Clause. However, the court warned that “when the

court considers the parties’ summary judgment motions, vague

allegations of coercion, unsupported by competent affidavits,

will not be sufficient to create a genuine issue of material fact.”

Sherman, 745 F. Supp. at 1374, n.4.4 The court will now deter-

mine whether there is a genuine issue of fact regarding plaintiffs’

Free Exercise claim.

The parties agree that when school officials force public

school students to recite or participate in the Pledge of Alle-

giance, it violates the students’ rights under the Free Exercise

Clause of the First Amendment. The Supreme Court so held in

West Virginia State Board of Education v. Barnette, 319 U.S. 624

(1943), and many lower courts have reaffirmed this principle

* After denying defendant Hartigan’s motion to dismiss, the court set a

briefing schedule for defendant Hartigan’s motion for summary judgment.

Thus, plaintiffs, having been warned about the importance of sufficient

affidavits, could have submitted supplementary affidavits in response to

defendant Hartigan’s motion for summary judgment. However, plaintiffs

chose not to file any response to defendant Hartigan’s motion and instead

relied on the briefs and affidavits previously filed in support of plaintiffs’

motion for summary judgment and in opposition to the school defendants’

motions.

B-9

since Barnette was decided. See, e.g., Mozert v. Hawkins County

Board of Education, 827 F.2d 1058, 1066 (6th Cir. 1987), cert.

denied, 484 U.S. 1066 (1988); Lanner v. Wimmer, 662 F.2d 1349,

1354 (10th Cir. 1981); Lipp v. Morris, 579 F.2d 834, 835-36 (3d

Cir. 1978); Goetz v. Ansell, 477 F.2d 636, 637-39 (2d Cir. 1973);

Frain v. Baron, 307 F. Supp. 27, 31-34 (E.D.N.Y. 1969). However,

the parties disagree about whether the Illinois pledge law, and

the School defendants’ implementation of the law violate the

principles enunciated in these cases.

Plaintiffs maintain that the court should hold III. Rev. Stat.

ch. 122, Para. 27-3 facially unconstitutional because the use of

the word “shall” makes the statute coercive, regardless of

whether the school defendants are applying the statute in a

mandatory way. The court agrees that it was an unfortunate

choice to use the word “shall” in the statute without explicitly

creating an exception for conscientious objectors, however the

use of the word “shall” alone does not necessitate declaring the

statute to ve facially unconstitutional. The statute does not state

that “all” students shall say the pledge, and therefore an excep-

tion can be imp!ied for conscientious objectors. Moreover, the

statute contains no penalty on its face. In fact, the sponsors of the

law relied on the lack of a penalty when arguing that the law did

not violate the principles enunciated in Barnette, supra. See Ill.

Gen. Assembly, Senate Floor Debates, May 22, 1979, pp. 270-71;

House Floor Debates, June 25, 1979, pp. 61, 64; June 30, 1979,

pp. 60-61. Finally, the court does not find the statute facially

unconstitutional because “plaintiffs must generally show that a

Statute is unconstitutional as applied, not merely that it may be

interpreted to authorize unconstitutional actions.” Van Zandt v.

Thompson, 839 F.2d 1215, 1218 (7th Cir. 1988), citing, Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 501-04 (1985). The court

will now examine whether the statute is unconstitutional “as

applied.”

Defendant Hartigan states in his motion for summary judg-

ment that “plaintiff Richard Sherman has never been in any way

B-10

required, forced, or compelled to ‘stand during, recite or other-

wise participate in the Pledge of Allegiance’ by his teacher or any

employee of Community Consolidated School District 21 of

Wheeling Township.” Hartigan’s Memo. in Support of Motion

for Summary Judgment at 4. As evidence of this, defendant

Hartigan cites to the affidavits of Superintendent Descarpentrie,

Principal Garrett and Richard Sherman’s first grade teacher,

Marilyn Barden. See School Defendants’ Response to Plaintiffs’

Motion for Summary Judgment, attached affidavits. All three

affiants state that Richard Sherman was never required to par-

ticipate in the daily pledge and that he was never punished or

threatened with punishment because of his refusal to participate.

Id.

Robert Sherman attempts to rebut these affidavits with his

own affidavit in which he states, ‘““Defendant Garrett, principal of

the school attended by my son, asks my son to stand with one

hand over his heart and participate with the other pupils in

reciting the pledge.” Affidavit of Robert Sherman, Para. 5. How-

ever, Mr. Sherman does not allege in his affidavit that this state-

ment is based on personal knowledge, as is required by Fed. R.

Civ. P. 56(e). He does not state that he attended his son’s school

and saw Principal Garrett asking his son, in particular, to stand

during the pledge. Without a properly supported affidavit, plain-

tiff cannot create a genuine issue of material fact as to whether

Principal Garrett, or any other school official directly forced his

son to participate in the pledge.

Not only does Mr. Sherman’s affidavit fail to create a genu-

ine issue of material fact regarding direct coercion, but it also is

insufficient to create a genuine issue of fact regarding indirect

coercion. Mr. Sherman may not rest on the allegations of indi-

rect coercion in his complaint, but must put forth specific facts

showing that there is a genuine issue for trial. See Fed. R. Civ.

P. 56(e). Mr. Sherman states in his affidavit that his “son has been

knocked down by other children who are angered at his opposi-

tion to pledging” and that his son has suffered “embarrassment

and humiliation . . . when the pledge ceremony is conducted.”

eeee

B-11

Affidavit of Robert Sherman, Paragraphs 8, 10. However,

Mr. Sherman does not explain how he knows that the reason his

son was knocked down was because of his refusal to recite the

pledge — Mr. Sherman just expects the court to take his word for

it. Similarly, Mr. Sherman does not state how he knows that his

son feels embarrassed during the pledge ceremony. If Mr. Sher-

man’s son told him that he was knocked down for not saying the

pledge ceremony, Mr. Sherman should have so stated in his

affidavit. Mr. Sherman should have also stated that his son is

incompetent to make an affidavit on his own behalf and explain

why. See, e.g., United States v. Jones, 482 F.2d 747, 752 (D.C. Cir.

1973) (test for competency of child witness depends upon intelli-

gence of the child and whether the child understands the differ-

ence between truth and falsehood). In short, Mr. Sherman’s

affidavit, in its present form, does not create a genuine issue of

material fact regarding whether Richard Sherman feels indirect

coercion to recite the pledge.

Moreover, even if Mr. Sherman had presented competent

evidence that his son feels indirectly coerced by peer pressure to

recite the pledge, it is doubtful that this would have been suffi-

cient to prove a violation of Richard Sherman’s Free Exercise

rights. This is because no other court has held that the mere

recital of the pledge, without any direct coercion by school offi-

cials, violates the First Amendment. In previous cases in which

school pledge laws or policies were found to be unconstitutional,

the school officials “punished” the children in some way for

refusing to participate. See, e.g., Barnette, supra. (students who

refused to participate in the pledge were expelled and both the

students and their parents were subject to prosecution for the

Student’s “unlawful absence’’); Lipp, supra. (student was

“threatened” by school officials when she refused to stand dur-

ing pledge); Goetz, Supra. (students opposed to pledge had to

either stand in silence, leave the room, or face suspension);

Banks v. Board of Public Instruction, 314 F. Supp. 285 (S.D. Fla.

1970) (student suspended for refusing to stand during pledge),

vacated, 401 U.S. 988 (1971). In the case at bar, it is undisputed

B-12

that Richard Sherman was not punished or threatened with pun-

ishment by any school official for failing to participate in the

pledge. At most, Richard faced indirect pressures because all the

other children were conforming and saying the pledge and he

was not.

The court recognized in its first opinion that these indirect

pressures can be compelling. As Justice Brennan stated in Abing-

ton School District v. Schempp, 374 U.S. 203, 290 (1963),

“(C]}hildren are disinclined at this age to step out of line or to

flout ‘peergroup norms.’ ”’ However, Justice Brennan made this

remark in the context of a case involving state laws which

required reading passages from the Bible or the Lord’s Prayer at

the beginning of each school day and these laws were found to

violate the Establishment Clause. In contrast, reciting the pledge

in public schools does not violate the Establishment Clause.

Moreover, a state legislature is entitled to establish a curriculum

for its schools which includes the teaching of the Pledge of

Allegiance to those students who have no religious objections to

reciting the pledge. In Palmer v. Board of Education of the City of

Chicago, 603 F.2d 1271, 1274 (7th Cir. 1979), cert. denied, 444

U.S. 1026 (1980), the Seventh Circuit held that a public school

teacher who was opposed to the pledge and other patriotic exer-

cises on religious grounds could not “require others to submit to

her views and to forego a portion of their education they would

otherwise be entitled to enjoy.” Similarly, even if the Shermans

_had made a proper showing regarding the peer pressure Richard

no doubt feels, the court believes that that alone would not be a

sufficient reason to deny the other children their right to learn

how to participate in this patriotic exercise. For these reasons,

the court grants defendant Hartigan’s motion for summary judg-

ment regarding plaintiff's Free Exercise claim.

Equal Protection

Finally, the court finds that there is no genuine issue of fact

regarding plaintiff's claim that the Illinois pledge statute violates

the Equal Protection Clause of the Fourteenth Amendment and

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B-13

the court grants defendant Hartigan’s motion for summary judg-

ment on this claim as well. In order to determine whether a law is

violative of the Equal Protection Clause, a court must first deter-

mine what level of scrutiny to apply. See Faheem-El v. Klincar,

841 F.2d 712, 727 (7th Cir. 1988). If the law infringes on a

fundamental right or discriminates on the basis of a suspect

category, the law is reviewed under either a strict or intermediate

scrutiny standard. /d. “If no fundamental rights or suspect cate-

gories are involved, a court must simply determine whether the

differential treatment of similarly situated individuals is ration-

ally related to a legitimate state interest.” Jd. The court has

already found that the statute does not violate the religion

clauses of the First Amendment, so no fundamental right is

involved. Also, the law does not discriminate on the basis of any

Suspect category. Fherefore, the court must determine whether

the law is rationally related to a legitimate state interest.

As the court stated above, Ill. Rev. Stat. ch. 122, Para-

graph 27-3 is rationally related to the legitimate state interest of

instilling knowledge of and appreciation for patriotic values in

public school students. As the Seventh Circuit stated in Palmer,

603 F.2d at 1274, “[t}here is a compelling state interest in the

choice and adherence to a suitable curriculum for the benefit of

our young citizens and society.” Learning the Pledge of Alle-

giance can certainly be considered part of a “suitable curricu-

lum” for students. Therefore, the court finds the pledge statute is

rationally related to a legitimate state interest. Defendant Harti-

gan’s motion for summary judgment on plaintiff's Equal Protec-

tion Clause claim is granted.

Conclusion

For the aforementioned reasons, the court finds that all

defendants were proper parties in Count I of the complaint.

Therefore, the court denies the school defendants’ motion to

dismiss Count I against them. The court further finds that there

is NO genuine issue of material fact as to whether III. Rev. Stat.

ch. 122, Paragraph 27-3 is constitutional under the First and

B-14

Fourteenth Amendments to the Constitution. The court grants

summary judgment in favor of all defendants and denies plain-

tiffs’ motion for summary judgment.

ENTER:

Ann Claire Williams, Judge

United States District Court

Dated: February 28, 1991

PT A hl a alg li AI WA Die COs ht

BPR ees ne! ie el A A lh. Sk hat BL RAD AAD Py tal ‘

C-1

APPENDIX C

IN THE

United States District Court

for the Northern District of Jllinois

“Eastern Division

ROBERT IAN SHERMAN, for himself

and as natural guardian for

RICHARD HARRY SHERMAN, a

minor son and the SOCIETY OF

SEPARATIONISTS, INC.,

Plaintiffs,

Vv.

COMMUNITY CONSOLIDATED

SCHOOL DISTRICT 21 OF WHEELING

TOWNSHIP, LLOYD DESCARPENTRIE,

School District Superintendent, and

DR. FERNE GARRETT, Principal of

Riley School, Individually and as

representatives of the STATE OF

ILLINOIS, and NEIL F. HARTIGAN,

Attorney General of the State of

Illinois,

Defendants.

No. 88 C 9205

t Hon. Ann C. Williams

District Judge

MEMORANDUM OPINION AND ORDER

Robert Sherman, on behalf of himself and his minor son,

Richard, and the Society of Separationists, Inc. (“the Society’’)

filed suit against Community Consolidated School District 21 of

Wheeling Township, School District Superintendent Lloyd

Descarpentrie, and Principal Ferne Garrett claiming that the

daily recital of the Pledge of Allegiance at Richard’s public

C-2

elementary school violates their rights under the First and Four-

teenth Amendments. Specifically, because the Shermans and the

members of the Society are atheists, they claim that the daily

recital of the Pledge, which contains the words “under God”, in a

public school, pursuant to an Illinois statute! is an unconstitu-

tional establishment of religion and violates their rights to free

expression and equal protection under the law. Defendants

moved to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). The court denied defendants’ motion to

dismiss, holding that although plaintiffs probably would not pre-

vail on their Establishment Clause claim, the plaintiffs’ com-

plaint did state viable Free Exercise and Equal Protection

claims.’

After the court’s ruling, plaintiffs filed a “re-amended”’

complaint in which plaintiffs added Illinois Attorney General

Neil Hartigan as a defendant. Plaintiffs’ most recent complaint

seeks a declaratory judgment that IIl.Rev.Stat. ch. 122, 1 27-3,

which provides for daily recital of the Pledge, is unconstitutional

and an injunction against its enforcement. Plaintiffs also seek

money damages from each defendant for the alleged violation of

plaintiffs’ constitutional rights and for the alleged emotional

distress plaintiffs have suffered. Defendant Hartigan has filed a

! Tll.Rev.Stat. ch. 122, § 27-3 provides, “The Pledge of Allegiance shall

be recited each school day by pupils in elementary educational institutions

supported or maintained in whole or in part by public funds.”

= See Sherman et al. v. Community Consolidated School District 21 of

Wheeling Township, et al., 714 FSupp. 932, 936-37 (N.D.Ill. 1989).

C-3

motion to dismiss the “re-amended” complaint pursuant to Fed-

eral Rule of Civil Procedure 12(b)(1). For the following reasons,

defendant’s motion to dismiss is denied.

STANDING

Defendant Hartigan argues that plaintiffs’ complaint

should be dismissed because plaintiffs have not suffered “actual

injury redressable by the court” and therefore they do not have

standing to maintain their suit. See Valley Forge Christian College

v. Americans United for Separation of Church and State, 454 U.S.

464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982), citing,

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.

26, 39, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976). In its

previous opinion in this case, the court examined the Society’s

standing to bring suit on behalf of its members and found that

the original complaint did not sufficiently allege actual or

threatened injury of any members other than the Shermans. The

court therefore ordered the Society to supplement the amended

complaint with factual allegations to support its standing to sue

on behalf of its members. In the “re-amended complaint” plain-

tiffs simply allege that “[t]here are other members of the Society

residing in District 21 who are offended by the Districts’s prac-

tice of enforcing IIIl.Rev.Stat. ch. 122, sec. 27-3”. Re-Amended

Complaint, 1 4. The court finds this general allegation does not

show any members other than the Shermans have suffered actual

or threatened injuries, “other than the psychological conse-

quence presumably produced by observation of conduct with

which one disagrees.. That is not an injury sufficient tc confer

>The Court notes that when ruling on a motion to dismiss brought

pursuant to Federal Rule of Civil Procedure 12(b)(1), the court “is not

bound to accept as true the allegations of the complaint which tend to

establish jurisdiction where a party properly raises a factual question con-

cerning the jurisdiction of the . . . court to proceed with the actions.”

Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979). Instead, the

court will “look beyond the jurisdictional allegations in the complaint and

view whatever evidence has been submitted on the issue in determining

whether in fact subject matter jurisdiction exists.” Jd.

C-4

standing under Art. III. . . ” Valley Forge College, 454 US. at

485, 102 S.Ct. at 765. Therefore, the court holds the Society does

not have standing to bring this suit on behalf of its members.

Defendant Hartigan argues that the Shermans also have

not alleged a concrete injury, apparently basing his argument on

the affidavits submitted by defendants Descarpentrie and Gar-

rett and Richard’s first grade teacher Marilyn Barden. All three

affiants state that Richard Sherman was never punished or

threatened with punishment for not participating in the Pledge.

However, defendant Hartigan ignores this court’s previous state-

ment that “school children are impressionable and often suscep-

tible to social influence” and therefore they may feel coerced to

recite the Pledge even if they are not punished or threatened

with punishment. Sherman, 714 FSupp. at 936-37. Plaintiffs

allege in the re-amended complaint and in Robert Sherman’s

affidavit that Richard felt compelled to say the Pledge because of

the embarrassment and loss of friends he suffered by refusing to

participate in a ceremony led by his principal and participated in

by all his classmates. See Re-Amended Complaint, 1 8, 11-13, 20

and Affidavit of Robert Sherman, 91 8, 10. These allegations may

not ultimately constitute a violation of plaintiffs’ rights under the

First and Fourteenth Amendments, but they are sufficient to

confer standing on the Shermans to bring this action.

RIPENESS

Defendant Hartigan next argues that plaintiffs’ complaint

should be dismissed because “‘plaintiffs’ claims are not ripe for

adjudication.” Defendant Hartigan’s Memo at 6. Again relying

on the affidavits stating that no school official has punished

Richard for refusing to say the Pledge, defendant Hartigan con-

cludes “[t}here is no ‘threat that the challenged law will be

enforced against’ any of the plaintiffs.” Jd. This again ignores

plaintiffs’ claim that defendants’ leading of the Pledge, pursuant

to the statute, is a means of compelling recitation of the Pledge.

This argument, even if it does not ultimately prevail, shows plain-

tiffs’ claim are ripe for adjudication.

C-5

ABSTENTION

Finally, defendant Hartigan argues that this court should

abstain from adjudicating plaintiffs’ claims because the statute at

issue has not been interpreted by any Illinois court and a ruling

by an Illinois court may modify or moot the constitutional issue

plaintiffs pose. However, “[t]he doctrine of abstention, under

which a District Court may decline to exercise or postpone the

exercise of its jurisdiction, is an extraordinary and narrow excep-

tion to the duty of a District Court to adjudicate a controversy

properly before it. Abdication of the obligation to decide cases

can be justified under this doctrine only in the exceptional cir-

cumstances where the order of the parties to repair to the State

court would clearly serve an important countervailing interest.”

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89,

79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). “The paradigm of the

‘special circumstances’ that makes abstention appropriate is a

case where the challenged state statute is susceptible of a con-

struction by the state judiciary that would avoid or modify the

necessity of reaching a federal constitutiona! questions.” Bab-

bitt v. United Farm Workers, 442 U.S. 289, 306, 99 S.Ct. 2301,

2313, 60 L.Ed.2d 895 (1979).

Defendant Hartigan maintains that this case is appropriate

for abstention because “‘an Illinois Court could very well deter-

mine that the statutory provision is simply not mandatory,

thereby avoiding a resolution of the constitutional questions

plaintiffs raise.” Defendant Hartigan’s Memo at 13. The court

disagrees that such a ruling by an Illinois court would obviate the

need to decide the constitutional question posed by plaintiffs.

According to the affidavits submitted by defendants, the statute

currently is being applied in a non-mandatory way. Defendants

are not openly forcing Richard Sherman to stand, recite or par-

ticipate in the Pledge. Yet, as the court has noted several times,

plaintiffs maintain that having the Pledge led by the principal

daily is inherently coercive and therefore violative of plaintiffs’

rights. Thus, even if an Illinois court interprets the statute to

C-6

exempt children who cannot say the Pledge for religious or polit-

ical reasons, the court would still have to resolve the question of

whether school officials’ leading of the Pledge, pursuant to the

statute, results in unconstitutional coercion. Because abstention

would not avoid the necessity of reaching the constitutional issue

and would simply add delay to a case that has already been

pending for almost two years, the court will not abstain from

deciding plaintiffs’ claims.

CONCLUSION

For the aforementioned reasons, defendant Hartigan’s

motion to dismiss is denied‘. A status hearing will be held on

September 11, 1990 at 9:30 a.m.

Ann C. Williams, District Judge

Date: August 21, 1990 7

* The court notes that in finding plaintiffs’ allegations of coercion suffi-

cient to defeat defendant’s motion to dismiss, the court construed plain-

tiffs’ pro se complaint and affidavit quite liberally. See Cain v. Lane, 857

F.2d 1139, 1142 (7th Cir. 1988) (pro se complaints must be read liberally).

However, when the court considers the parties’ summary judgment

motions, vague allegations of coercion, unsupported by competent affida-

vits, will not be sufficient to create a genuine issue of material fact. See

Federal Rule of Civil Procedure 56(e). Summary judgment must be entered

“against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The court did

not issue a ruling on the summary judgment motions already filed because

the court wishes to have all the summary judgment motions before it in

order to decide them simultaneously. Therefore, the court orders defen-

dant Hartigan to file a summary judgment motion by August 31, 1990.

Plaintiffs’ response is due September 10, 1990 and defendant’s reply is due

September 17, 1990.

D-1

APPENDIX D

IN THE

United States District Court

for the Northern District of Mllinois

Eastern Division

ROBERT SHERMAN, for himself and

as natural guardian for his son,

RICHARD SHERMAN, and the

SOCIETY OF SEPARATIONISTS, INC.,

Plaintiffs,

COMMUNITY CONSOLIDATED

SCHOOL DISTRICT 21 OF WHEELING

TOWNSHIP, School District

Superintendent LLOYD

DESCARPENTRIE, and Principal

FERNE GARRETT,

Defendants. |

No. 88 C 9205

Judge Ann C. Williams

MEMORANDUM OPINION AND ORDER

The plaintiffs Robert Sherman, for himself and as natural

guardian for his son, Richard Sherman, and the Society of

Separationists, Inc. bring this complaint pursuant to 42 U.S.C.

§ 1983 alleging that the defendants community Consolidated

School ™ strict 21 of Wheeling Township, School District Super-

intendent Lloyd Descarpentrie, and Principal Ferne Garrett vio-

lated their rights under the First and Fourteenth Amendments.

The plaintiffs also challenge the constitutionality of Ill. Rev. Stat.

ch. 122, p 27-3 (1980). The defendants move to dismiss the

D-2

plaintiffs’ complaint pursuant to Federal Rule of Civil Proce-

dure 12(b)(6). The defendants’ motion is denied for the follow-

ing reasons.

RULE 12(B)(6)

When ruling on this motion, pursuant to Federal Rule of

Civil Procedure 12(b)(6), the court will “take the allegations in

the complaint to be true and view them along with the reason-

able inferences to be drawn from them in the light most

favorable to the plaintiff[s].” Ellsworth v. City of Racine, 774 F.2d

182, 184 (7th Cir. 1984), cert. denied, 475 U.S. 1047, 106 S.Ct.

1265, 89 L.Ed.2d 574 (1986). A complaint should be dismissed

only when “it appears beyond doubt that the plaintiff is unable to

prove any set of facts which would entitle plaintiff to relief.” Id.

In addition, a “court must construe [pro se] pleading liberally,

and mere vagueness or lack of detail does not constitute suffi-

cient grounds for a motion to dismiss.””' Strauss v. City of Chicago,

760 F.2d 765, 767 (7th Cir.1985); Cain v. Lane, 857 F.2d 1139,

1142 (7th Cir.1988) (pro se complaints must be read liberally).

Finally, the court notes that “in ‘complex cases involving funda-

mental rights and important questions of public policy, such

peremptory treatment [as dismissal] is rarely appropriate.”’

DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir.1988), quoting

Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th

Cir.1988) (Ripple, J., concurring in part, dissenting in part).

! The plaintiffs were proceeding pro se when they drafted and filed their

complaint. Although they have now obtained counsel, the initial complaint

was not amended by counsel. Consequently, the court will continue to give

the plaintiffs’ complaint the solicitude accorded to pro se pleading.

D-3

FACTS

The pertinent facts as alleged in the complaint are as fol-

lows. Richard Sherman is a first grade student at James Whit-

comb Riley Public Elementary School. At 9:05 a.m. Principal

Garrett “addresses all classrooms on an intercom system telling

them to:

Please rise for the all-school pledge. I pledge allegiance

to the flag of the United States of America and to the

republic for which it stands, one nation under God,

indivisible, with liberty and justice for all.

Richard is publically asked to stand, put one hand over his heart,

and perform this ceremony. Complaint, p 5. The Shermans, who

are practicing atheists, are members of the Society of Separa-

tionists. The Society is a Maryland corporation licensed to do

business in Illinois. The Society “has played a historical role in

Church/State separation[,] government-coerced observances

and other United State Constitutional issues for many years.” Id.

at p 4.

Ill

STANDING

The defendants move to dismiss the complaint on a variety

of grounds. The defendants first contend the Society does not

have standing to pursue this action as a party plaintiff on its own

behalf.* They are correct. The society itself is not in a position to

assert those rights, claimed to be constitutionally protected,

which the statute curtails. Cf, N.A.A.C.P v. Button, 371 U.S. 415,

428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). The society, there-

fore, does not suffer the actual or threatened injury required to

? When ruling on this motion to dismiss for want of standing, this court

“must accept as true all material allegations of the complaint, and must

construe the complaint in favor of the complaining party.” Warth v. Seldin,

422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

D-4

make out a case or controversy between itself and the defendants

within the meaning of Article III. See Valley Forge Christian Col-

lege v. Americans United For Separation of Church and State, Inc.,

454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982);

FMC Corp. v. Boesky, 852 F.2d 981, 987 (7th Cir.1988). However,

the above conclusion does not foreclose the possibility that the

Society may be able to bring suit on behalf of its members injured

by the challenged conduct. The Society may bring suit on behalf

of its members if

(a) its membership would otherwise have standing to

sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and

requires the participation of individual members in the

lawsuit.

Hunt v. Washington State Apple Advertising Commission, 432 U.S.

333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Freedom

From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1467 (7th

Cir. 1988).

Given the bare bones nature of the complaint, the court is

unable to determine whether the Society has standing to pursue

claims on behalf of its membership at this juncture. While it is

clear that at least two members of the Society, the Shermans,

would have standing to sue in their own right,’ they are already

doing so. It is not clear whether any other Society members

would have standing to sue as a consequence of suffering actual

or threatened injuries. Cf O’Hair v. White, 675 F.2d 680, 691 (Sth

Cir.1982) (Society has standing to sue under a claim where every

member suffers an individual injury to a fundamental right). In

addition, the plaintiffs request, among other things, damages for

mental distress and humiliation and punitive damages. This type

of relief requires the participation of the individuals who have

been harmed. See Hunt, 432 U.S. at 333, 97 S.Ct. at 2434 (an

3 See School District of Abington Township v. Schempp, 374 U.S. 203, 224

n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed. 2d 844 (1963).

a, pros

D-5

association may properly pursue declaratory, injunctive, or some

other form of prospective relief on behalf of its membership).

The plaintiffs will be given twenty-one (21) days from the entry

of this order to conform their complaint to this court’s ruling.

The Society is directed to supplement the amended complaints

with factual allegations pertinent to the Standing question. See

Warth, 422 U.S. at 501, 95 S.Ct. at 2206. The court will determine

whether the Society has standing to pursue this action on behalf

of its members after the amended complaint is filed.

ESTABLISHMENT CLAUSE

The plaintiffs contend that Ill.Rev.Stat. ch. 122. p 27-3 vio-

lates the Establishment Clause of the First Amendment.‘ The

third clause of the statute provides that

The Pledge of Allegiance shall be recited each school

day by pupils in elementary educational institutions

Supported or maintained in whole or in part by public

funds.

ll.Rev.Stat. ch. 122, p 27-3. “The Establishment Clause . _ .

does not depend upon any showing of direct government com-

pulsion and is violated by the enactment of laws which establish

an Official religion whether these laws operate directly to coerce

non-observing individuals or not.” Engel v. Vitale, 370 U.S. 421.

430, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962). In Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),

the Supreme court developed a “three-prong test to determine

* The first Amendment of the Constitution provides in pertinent part

that

Congress shall make no law respecting an establishment of religion or

prohibiting the free exercise thereof:

The Establishment and Free Exercise Clauses have been made a plicable

to the states through the Fourteenth Amendment. Abington, 374 U.S. at

214, 83 S.Ct. at 1567; Edwards v. Aguillard, 482 U.S. 578. 582 n. 3,1

at 2576 n. 3 (1987).

07 S.Ct.

D-6

whether legislation comports with the Establishment Clause.”

Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96

L.Ed.2d 510 (1987). The Lemon test is as follows:

First, the legislature must have adopted the law with a

secular purpose. Second, the statute’s principal or pri-

mary effect must be one that neither advances nor

inhibits religion. Third, the statute must not result in an

excessive entanglement of government with religion.

Id., quoting Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111.

The state’s action must satisfy each prong of the test. /d.

The court cannot apply the Lemon test when resolving this

motion to dismiss because an application of the test would

involve the court’s consideration of matters outside of the plead-

ing. See, e.g., Edwards, 482 U.S. at 587, 107 S.Ct. at 2579 (legisla-

tive history is considered). However, the failure of the plaintiffs’

Establishment Clause claims is all but a foregone conclusion.

Several courts have expressly found that the Pledge of Alle-

giance may be recited in public schools without violating the

Establishment clause. See Lanner v. Wimmer, 662 F.2d 1349, 1354

(10th Cir.1981) (“while public schools may conduct patriotic

ceremonies such as the pledge of allegiance, they may not com-

pel participation by children who object on free exercise

grounds’’); Smith v. Denny, 280 F.Supp. 651, 653-54

(E.D.Ca.1968), appeal dismissed, 417 F.2d 614 (9th Cir.1969);

Gavin v. Peoples Natural Gas Co., 464 F.Supp.622,627

(W.D.Pa.1979), vacated on other grounds, 613 F.2d 482 (3d

Cir.1980) (citing Smith). In Smith, the court characterized the

Pledge as a “patriotic exercise[! containing ancillary references

to God.” Smith, 280 F.Supp. at 653.

Other courts have found that the inclusion of the phrase

“In God We Trust” on coinage and currency does not violate the

Establishment Clause. See Aronow v. United States, 432 F.2d 242,

243 (9th Cir. 1970); Hall v. Bradshaw, 630 F.2d 1018, 1022 (4th

Cir.1980), cert denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d

613 (1981) (“References to the Deity in our ceremonies and our

ee ea ee

a eae eee, pies

5 Nee UR tealla Pardes 20 as Abii Pay gene fahe

;

‘

D-7

coinage and seals do not violate the Establishment Clause

because they merely reflect his fact of our history and no longer

have any potentially entangling theological significance.”) in

Aronow, the Ninth Circuit stated that

[i]t is quite obvious that the national motto and slogan

on coinage and currency ‘In God We Trust’ has nothing

whatsoever to do with the establishment of religion. Its

use is of a patriotic or ceremonial character and bears

no true resemblance to government sponsorship of a

religious exercise.

Aronow, 432 F.2d at 243. Another court held that the singing of

the National Anthem by public school children does not violate

the Establishment Clause. Sheldon v. Fannin, 221 FSupp. 766,

774 (D.Ariz. 1963). In the course of resolving the issue, the court

noted that

[t]he singing of the National Anthem is not a religious

but a patriotic ceremony, intended to inspire devotion

to and love of country. Any religious references therein

are incidental and expressive only of the faith which as

a matter of historical fact has inspired the growth of the

nation.

Finally, although the Supreme Court has not expressly

ruled on this question, the court has strongly intimated that the

recitation of the Pledge by public school students does not vio-

late the Establishment Clause. The Court has repeatedly noted

that “[w]e are a religious people whose institutions presuppose a

Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct.

679, 684, 96 L.Ed. 954 (1952); Lynch v. Donnelly, 465 U.S. 668,

675, 104 S.Ct. 1355, 1360, 79 L.Ed.2d 604 (1984). Moreover,

“[t]here is an unbroken history of official acknowledgement by

all three branches of government of the role of religion in Ameri-

can life from at least 1789.” Lynch, 465 U.S. at 674, 104 S.Ct. at

1359. In Lynch, the Supreme court listed a series of constitution-

ally permissible acknowledgement of the role of religion in

American life. See Van Zandt v. Thompson, 839 F.2d 1214, 1221

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(7th Cir.1988) (citing to Lynch, 465 U.S. at 676-78, 104 S.Ct. at

1360-62). The pledge was one of the acknowledgements listed.

Lynch, 465 U.S. at 676, 104 S.Ct. at 1361. The Court explicitly

noted how the Pledge incorporated the phrase “ore Nation

Under God” and is “recited by many thousands of public school

children — and adults — every year.” id. The court has expressed

its implicit approval of the Pledge in other cases as well. See

Engel, 370 U.S. at 435 n. 21, 82 S.Ct. at 1269 n. 21; Abington, 374

U.S. at 281, 303-04, 83 S.Ct. at 1614 (Brennan, J., concurring)

(“The reference to divinity in the revised pledge of alle-

giance...may merely recognize the historical fact that our Nation

was believed to founded ‘under God.’ ’’)

The plaintiffs attempt to rebut this array of cases by attack-

ing the underlying reasoning of some of the decisions. The court

is unpersuaded by their contentions. Furthermore, the plaintiffs

have cited no other case law in support of their claimed Estab-

lishment Clause violation. If the plaintiffs choose to press this

claim in their amended complaint, the court will apply the

Lemon test.

FREE EXERCISE CLAUSE

The plaintiffs also contend that II!.Rev.Siat. ch. 122, 27-3

violates the Free Exercise Clause by compelling Richard Sher-

man to recite the Pledge of Allegiance. The court finds that this

claim is meritorious. “The Free Exercise Clause affords an indi-

vidual protection from certain forms of government compul-

sion.”’ Bowen v. Roy, 476 U.S. 693, 700, 106 S.Ct. 2147, 2152, 90

L.Ed.2d 735 (1986); Mozert v. Hawkins County Board of Educa-

tion, 827 F.2d 1058, 1070 (6th Cir.1987), cert. denied. ___. US.

, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988); see also Abington,

374 US. at 223, 83 S.Ct. at 1572 (Free Exercise Clause requires

compulsion). In the seminal case West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628

(1943), the Supreme Court found that the compulsory flag salute

™"

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and pledge required by local authorities was unconstitutional.

The Court stated that

[i]f there is any fixed star in our constitutional constel-

lation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion

or other matters of opinion or force citizens to confess

by word or act their faith therein..

Id. at 642, 63 S.Ct. at 1187.

The local authorities “transcend[ed] constitutional limitations

on their power” by imposing the compulsory flag salute and

pledge. Jd. The holding in Barnette has been applied and reaf-

firmed by numerous lower courts. See, e.g., Mozert, 827 F.2d at

1066; Lanner, 662 F.2d at 1354; Lipp v. Morris, 579 F.2d 843,

835-36 (3d Cir.1978); Goetz v. Ansell, 477 F.2d 636, 637-39 (2d

Cir.1973); Frain v. Baron, 307 F.Supp. 27, 31-34 (E.D.N.Y.1969).

The defendants do not, indeed cannot, challenge the above

legal principles. Instead, they attempt to distinguish this case

from Barnette on the grounds that Richard Sherman was not

compelled to recite the Pledge. The defendants’ argument is

flawed for several reasons. First, the factual allegations of the

complaint are sufficient in themselves to suggest compulsion.

Robert Sherman, a first grader, must attend school under Illinois

law. He is told to stand, put one hand over his heart, and recite

the Pledge by his principal each morning. As the Supreme Court

has noted, school children are impressionable and often suscep-

tible to social influence. See School District of the City of Grand

Rapids v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d

267 (1985); Abington, 374 U.S. at 288-90, 291 n. 69, 83 S.Ct. at

1606-07, 1608 n. 69 (Brennan, J., concurring) (“i]t is also appar-

ent that the susceptibility of school children to prestige sugges-

tion and social influence within the school environment varies

inversely with the age, grade level, and consequent degree of

sophistication of the child.”) The command of his principal along

with fears of “embarrassment, potential loss of business associa-

tions (Robert), friends and other sanctions/penalties” compel

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Richard to recite the Pledge. Complaint, pp 7-9; see also Abing-

ton, 374 U.S. at 290, 83 S.Ct. at 1607 (Brennan, J., concurring)

(“even devout children may well avoid claiming their right and

simply continue to participate in exercises distasteful to them

because of an understandable reluctance to be stigmatized as

atheist or nonconformists.’’)

Moreover, the statute requires pupils to recite the Pledge in

clear and unambiguous prose. Thus, the statutory terms are

coercive. Cf, Bowen, 476 U.S. at 704, 106 S.Ct. at 2154 (statute

that requires the submission of a social security number as a

prerequisite for obtaining benefits is compulsive.) The defend-

ants contend that the legislature’s failure to include sanctions for

non-compliance renders the statue non-compulsive. The plain-

tiffs, however, note that Illinois law allows school boards to

suspend or expel pupils for misconduct. See Ill.Rev.Stat. ch. 122,

p 10-22.6. While “misconduct” is not explicitly defined, the fail-

ure to obey the express command of a state statute would seem

to fall within any definition of the terms. As a result, it is conceiv-

able that the younger Sherman could be punished under Illinois

law for his failure to comply with the statute. The defendants also

contend that Richard has always been free to remain seated

quietly at his desk during the recitation of the Pledge. The court

will not consider this assertion because it is, quite naturally, not

included in the plaintiffs’ complaint. Furthermore, the statute by

implication negates any such right. Consequently, the court finds

that the plaintiffs have stated a claim for violation of the Free

Exercise Clause.

EQUAL PROTECTION CLAUSE

The plaintiffs further challenge Ill.Rev.Stat. ch. 122, p 27-3

on the grounds that it violates the Equal Protection Clause of the

Fourteenth Amendment. The Equal Protection Clause “pro-

vides that no State shall ‘deny any person within its jurisdiction

equal protection of the law.’” Faheem-El v. Klincar, 841 F.2d 712,

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727 (7th Cir.1988), quoting U.S. Const.Amend.XIV. When mak-

ing its equal protection analysis, this court must first determine

whether the state legislation “infringes upon a fundamental right

or discriminates on the basis of a suspect category.” Jd. In this

case, the plaintiffs assert that the statute infringes on their First

Amendment rights. As stated above, the court has found that the

challenged statute may violate the plaintiffs’ rights as guaranteed

by the Free Exercise Clause. “When State laws impinge on per-

sonal rights protected by the Constitution,” they may be “sus-

tained only if they are suitably tailored to serve a compelling

state interest.” Cleburne v. Cleburne Living Center, Inc., 473 U.S.

432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Attorney

General of New York v. Soto-Lopez, 476 U.S. 898, 904, 906 n. 6,

106 S.Ct. 2317,2322, n. 6, 90 L.Ed.2d 899 (1986); Shapiro v.

Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d

600 (1969); see also Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1049

(2d Cir.1975) (Strict scrutiny applicable when an ordinance bur-

dens First Amendment expression rights). Thus, the plaintiffs’

equal protection challenge may also be meritorious and will not

be dismissed.

Vil

PUNITIVE DAMAGES

The Defendants move to strike the plaintiffs’ prayer for

punitive damages pursuant to Federal Rule of Civil Procedure

12(f). The defendants’ motion is granted for the following rea-

sons. Under Illinois law, “punitive or exemplary damages may be

awarded when torts are committed with fraud, actual malice,

deliberate violence or oppression, or when the defendant acts

willfully, or with such gross negligence as to indicate a wanton

disregard of the rights of others.” Kelsay v. Motorola, Inc., 74

Il].2d 172, 384 N.E.2d 353, 359 (IIl.1978). In addition, “the pre-

liminary question of whether the facts of a particular case justify

the imposition of punitive damages is properly on of law.” Jd.;

West v. Western Casualty and Surety Co., 846 F.2d 387, 398 (7th

Cir.1988). In this case, there are no allegations which indicate

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that the defendants acted in a sufficiently egregious manner as to

warrant the imposition of punitive damages.’ Consequently, the

plaintiffs’ prayer for punitive damages will be stricken.

Vill

QUALIFIED IMMUNITY

The defendants Descarpentrie and Garrett also move for

dismissal of the action against them in their individual capacities

on the grounds that they are entitled to good faith immunity

from liability. Qualified immunity, as an affirmative defense, will

be an appropriate ground for dismissal if it “clearly appears on

the face of the complaint.” Quiller v. Barclays American/Credit.

Inc., 727 F.2d 1067, 1069 (11th Cir.1984), adhered to, 764 F.2d

1400 (11th Cir.1985) (en banc), cert. denied, 476 U.S. 1124, 106

S.Ct. 1992, 90 L.Ed.2d 673 (1986); Rakovich v. Wade, 850 F.2d

1180, 1204 (7th Cir.) (en banc), cert. denied, ____ U.S. ___., 109

S.Ct. 497, 102 L.Ed.2d 534 (1988) (qualified immunity is an

affirmative defense). The defendants’ qualified immunity

defense does not appear on the face of the complaint. Moreover,

qualified immunity determinations are more appropriately made

in the summary judgment context. Rakovich, 850 F.2d at 1205-06.

Accordingly, the court will resolve the immunity issue in the

context of the parties’ summary judgment motions.

* The court notes that the defendant school district, a quasi-municipal

corporation, would be immune from punitive damages in any event. Peo-

ple v. Furman, 26 Ill.2d 334, 186 N.E.2d 262, 263 (Ill.1962) (School districts

are quasi-municipal corporations); People v. Wood, 411 Ill. 514, 104 N.E.2d

800, 805 (II].1952) (same); People v. Deatherage, 401 Ill. 25, 81 N.E.2d 581,

592 (Ill. 1948) (“A school district is a quasi-municipal corporation, and

analogous to any other municipal corporation created under legislative

enablement laws.”) City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271,

101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981) (Municipal corporations are

immune from punitive damages).

hits OV ec Soe

ee SO eS ee eee

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CONCLUSION

For the foregoing reasons, the court denies the defendants’

motion to dismigs. The plaintiffs are given twenty-one (21) days

from the entry of this order to amend their complaint to supple-

ment and focus their factual allegations.

Ann C. Williams, District Judge

May 12, 1989

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.