Totalitarianism in Public Schools: Enforcing a Religious and Political Orthodoxy

AuthorLori A. Catalano
PositionJ.D., Capital University Law School, 2006

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If there is any fixed star in our constitutional constellation, 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.1


On June 14, 2004, the United States Supreme Court had the opportunity to protect religious minorities from the constant belittling of their beliefs.2 Instead, it evaded the question.3 Two years earlier, Dr. Michael A. Newdow, a professed atheist,4 had convinced the Ninth Circuit that the recitation of the Pledge of Allegiance in public schools was unconstitutional.5 This sparked a national controversy, with protestors calling for the judges' removals6 and members of Congress reciting the Pledge on the steps of the Capitol.7 Senators gathered for the chaplain's prayer and Pledge recitation, usually much unattended, to start the workday.8 Newdow received threatening telephone calls, but refused toPage 602 back down.9 He insisted that his goal was to "separate faith from any action of government" by removing the words "under God" from the Pledge.10

Senate and House members immediately introduced bills to protect the modern version of the Pledge of Allegiance.11 The Senate bill emphasized the necessity of retaining the words "under God" in the Pledge.12 The House bill and House resolution expressed the sentiment that the Ninth Circuit had wrongly decided the issue,13 and the House bill called for a limitation of the jurisdiction of the lower federal courts to hear cases concerning the constitutionality of the words "under God" in the Pledge.14

The controversy continued as the 2004 election campaigns of George W. Bush and John Kerry progressed.15 Both presidential candidates declared their opposition to the removal of the phrase "under God" from the Pledge.16 President Bush openly discussed his faith in God both on the campaign trail and in conferences with national leaders.17

Not since the early 1940s had the Pledge of Allegiance attracted this type of national attention.18 Children had recited some version of the Pledge of Allegiance in public schools since the late 1800s without objection.19 But in 1937, the parents of two young children challenged the school policy requiring them to recite the Pledge.20 Ultimately, in 1943, the United States Supreme Court held that no one could be compelled toPage 603 recite the Pledge of Allegiance, because it forced the speaker to profess21 certain beliefs. This ended a decade filled with persecution of Jehovah's Witnesses for refusing to recite the Pledge on religious grounds.22 Despite this decision, the Pledge remained as a part of the daily routine of schoolchildren throughout the United States.23 Until Newdow's suit and the remarkable decision of the Ninth Circuit, the constitutionality of the Pledge probably did not occur to most Americans.

The Supreme Court overturned the Ninth Circuit's decision, holding that Newdow lacked the standing to challenge the constitutionality of the Pledge of Allegiance.24 Loosely basing the decision on a prudential standing argument,25 the majority did not decide the merits of the case. Justices Kennedy, Souter, Ginsburg, and Breyer joined Justice Stevens in evading the ultimate issue:26 whether the United States was about to part with fifty years of tradition. Chief Justice Rehnquist and Justices O'Connor and Thomas concurred in the judgment, but did so based on the merits of the case,27 finding that Newdow did have the standing to bring the suit.28 Their concurrences found that the Pledge was constitutional as written.29 Justice Scalia recused himself because he had previouslyPage 604 publicly denounced the Ninth Circuit's opinion.30 Essentially then, four members of that Court concluded that the Pledge of Allegiance is constitutional as currently written. It is likely that Chief Justice Roberts would also find the Pledge constitutional, as would Justice Alito.

The Ninth Circuit was right. It is unconstitutional for any level of government to provide for the recitation of the Pledge of Allegiance in public schools. This may be a surprising statement, given the long history of the Pledge and its traditional recitation in school settings. But it is the only logical conclusion under Supreme Court precedent.

Part I of this Article begins by discussing the history of patriotic exercises in public schools, which began in the late 1800s. It discusses the persecution of Jehovah's Witnesses because of their refusal to salute the American flag. Next, it analyzes the rationale of the Supreme Court in holding that mandatory flag salutes violated the First Amendment. Part I concludes with examples of modern developments concerning the Pledge of Allegiance, including some surprisingly cruel treatment of students by their teachers for refusing to salute the flag.

Part II of this Article discusses the Establishment Clause tests that have been promulgated by the Supreme Court since 1962. It begins with the original cases banning prayer in public schools-Engel v. Vitale and School District of Abington Township v. Schempp. It ends with an examination of the historical cases of Lemon v. Kurtzman, Lynch v. Donnelly, and Lee v. Weisman, in which the Supreme Court delineated the Lemon test, the endorsement test, and the coercion test, respectively.

Part III of this Article describes the recent court decisions concerning the constitutionality of the words "under God" in the Pledge, highlighting the Supreme Court's decision in Elk Grove Unified School District v. Newdow. It also includes a discussion of other court decisions, in both trial and appellate courts, that examined the constitutionality of the Pledge of Allegiance.

Part IV begins with an analysis of the defects in the court decisions that held that the Pledge does not violate the Establishment Clause. It then examines the Pledge's constitutionality under the Establishment Clause tests, concluding that every test will produce the same conclusion-that the Pledge of Allegiance, recited in public schools, violates the Establishment Clause. It concludes with a proposal that the Pledge of Allegiance is unconstitutional, notwithstanding the Establishment Clause violation, because it violates free speech.

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Part V of this Article looks to future challenges to the constitutionality of the Pledge. It discusses current legislation pending before both the House and the Senate that would limit the ability to bring an Establishment Clause challenge over the Pledge. Finally, it concludes with a prediction of the Supreme Court's actions in the future.

I Background
A Patriotic Exercises in Public Schools

During the late 1800s, legislators and veterans groups were searching for a way to perpetuate the patriotism that had thrived in America during and immediately following the Civil War.31 Many of these groups saw schools as the natural place to instill a sense of patriotism in America's youth.32 The Grand Army of the Republic (GAR), a group of Civil War veterans, lobbied for the enactment of legislation mandating the display of the American flag in schools.33 The GAR often donated flags to the schools, but there was little show of enthusiasm among the students.34 In 1892, in preparation for a Columbus Day celebration, the National Education Association and Francis Bellamy planned a ceremony involving a flag salute by children throughout the country.35 This salute included a recitation of the original Pledge of Allegiance, which was developed by Bellamy's Youth's Companion36 The original Pledge of Allegiance was: "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all."37 After this Columbus Day event, many schools continued to include patriotic exercises in the students' daily routines.38 By 1900, eleven states had passed laws mandating the display of the national flag in public schools.39

The Pledge began to grow in popularity over the next few decades. In the 1920s and 1930s, many states passed laws requiring daily patriotic rituals in public schools.40 These patriotic rituals were mandatory for thePage 606 students...

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