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Supreme Court Unlikely to Tackle Pledge Anytime Soon

A few days ago, I reported on the U.S. Supreme Court's refusal to take up a challenge to a New Hampshire law requiring schools to lead daily recitations of the Pledge of Allegiance.

In the deadline rush of a very busy day of education law news (a Supreme Court ruling of the First Amendment rights of public officials, the Pledge denial, and a pair of rulings by a federal appeals court on student Internet speech rights), I mentioned that I thought a similar challenge to school recitations of the Pledge in a California case was still pending.

Thanks to a couple of astute readers of the School Law Blog, Bob Egelko, of the San Francisco Chronicle, and Eric Rassbach of the Becket Fund for Religious Liberty, I learned that the case in the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had come to a close.

The full 9th Circuit declined last fall to grant rehearing of a 2-1 panel decision in Newdow v. Rio Linda Union School District , which upheld teacher-led Pledge observances.

Michael A. Newdow, the California lawyer and atheist who is the driving force behind challenges to exposing public school students to the words "under God" in the Pledge, told me via e-mail that his client opted not to appeal the 9th Circuit panel decision to the Supreme Court after the full 9th Circuit declined to rehear the case. In part, that was because a child-custody issue arose, which would have raised some of the same procedural hurdles that kept the high court from deciding the merits of a previous Pledge challenge brought by Newdow. He plans to file a new challenge to the practice in the future, he said.

The Supreme Court ruled in 2004 in Elk Grove Unified School District v. Newdow that the atheist father lacked standing to challenge the school district's pledge policy on behalf of his daughter, whose mother had sole custody.

The procedural issue did not stop three of the court's conservatives—Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Clarence Thomas—from issuing opinions stating that they would have upheld Pledge recitations in the schools. (Justice Antonin Scalia, you may recall, had spoken out about the case and agreed to recuse himself once it came before the high court.)

For quite some time, as these other Pledge challenges made their way through the courts, it seemed inevitable that the issue would return to the Supreme Court unencumbered by procedural difficulties.

But the 9th Circuit case has fizzled, and the justices expressed no interest in taking up a decision by the U.S. Court of Appeals for the 1st Circuit, in Boston, that upheld the New Hampshire law. Passed in the wake of the Sept. 11, 2001, terrorist attacks, the law requires schools to set aside time for teachers to lead the Pledge.

Of course, the 1st Circuit noted that under the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette, no child is required to recite the Pledge. (Although the lesson of that case has been lost on some teachers and administrators in recent years.)

In his appeal to the Supreme Court in the New Hampshire case, Freedom From Religion Foundation v. United States, Newdow says that the 1950's addition of the words "under God" by a Communist-fearing Congress "divided the American people on the basis of religious belief."

"Since that time, agents of the government (i.e. public school teachers) have done as Congress intended, leading the children throughout the country in reciting the amended (Monotheistic) version of the Pledge."

Those recitations are likely to continue throughout much of the country for the foreseeable future.

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