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Pledge of Allegiance in Schools Upheld

A federal appeals court today upheld teacher-led recitations of the Pledge of Allegiance in public schools.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 to reject a challenge by atheist parents that subjecting their children to the pledge with its inclusion of the words "under God" amounted to an unconstitutional government establishment of religion.

"We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge--its wording as a whole, the preamble to the statute, and this nation's history--demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase 'one Nation under God' does not turn this patriotic exercise into a religious activity," said the March 11 opinion by U.S. Circuit Judge Carlos T. Bea in Newdow v. Rio Linda Union School District.

The suit was organized by Michael A. Newdow, a California atheist and lawyer who had challenged the pledge in his own daughter's school district in 2000, leading to a highly controversial ruling by a 9th Circuit panel in 2002 that teacher-led recitations violated the establishment clause. The U.S. Supreme Court reviewed the decision, but by that time Newdow's ex-wife had intervened in the case to argue that he didn't have custody of the daughter.

The Supreme Court ruled in 2004 in Elk Grove Unified School District v. Newdow that because he did not have custody, the father lacked standing to fully represent his daughter's interests, and it held that the 9th Circuit should not have reached the merits of the case. The five justices who signed on to that opinion expressed no views on the basic constitutional question. Three members of the court--Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas--wrote opinions expressing the view that Newdow did have standing and that they would have gone on to uphold the pledge in schools. Justice Antonin Scalia did not participate in the case. (See Education Week's preview and decision stories.)

The new suit included as a plaintiff an atheist mother, identified in court papers as Jan Roe, who objected to her daughter's exposure to the pledge in public school. The suit challenged not only Congress's 1954 addition of the words "under God" to the pledge, but also a California state law requiring schools to start the day with an "appropriate patriotic exercise," and the district's policy of requiring teachers to lead willing students in recitations of the pledge.

The dissenter in the new case is U.S. Circuit Judge Stephen Reinhardt, who wrote the panel decision striking down pledge recitations in the earlier case.

"History leaves no doubt that Congress inserted the words 'under God' in the Pledge of Allegiance in order to inculcate in America's youth a belief in religion, and specifically a belief in God," Judge Reinhardt said in a 136-page dissent. "It is equally clear that the daily, state-sponsored, teacher-led recitation of the 'under God' version of the Pledge in public schools, institutions in which First Amendment rights are most in need of vigilant protection, violates the Establishment Clause, under any legal analysis in which this court may properly engage."

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