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Does the federal appeals court decision in Newdow v. U.S. Congress mean the Pledge of Allegiance is now banned in all public schools?


First, the 9th U.S. Circuit Court of Appeals has temporarily put off enforcing its Newdow ruling. Newdow's case failed before the U.S. Supreme Court in 2004; he has filed a new case that is being litigated in a lower court.

Second, a 9th Circuit decision directly affects schools only in states within the 9th Circuit’s jurisdiction: Alaska, Hawaii, California, Oregon, Washington, Montana, Idaho, Nevada and New Mexico. A public school in any other state is governed, to varying degrees, by the legal interpretations of its individual state’s supreme court, of the federal appeals court encompassing that state, and of the U.S. Supreme Court.

Third, the Newdow ruling, even if enforced, would not prevent students from voluntarily deciding to recite the pledge, without any government involvement. Such an interpretation of Newdow would be consistent with prior Supreme Court rulings on school prayer and student speech, under which state-sponsored school prayers are unconstitutional, but truly voluntary, nondisruptive prayers by students would be constitutionally protected.

Fourth, although courts outside the 9th Circuit could voluntarily decide to follow Newdow’s interpretation of Supreme Court precedents, such courts could instead decide to follow the dissenting view that the reference to God in the pledge is mere “ceremonial deism” (like “In God We Trust” on coins) and is no danger to First Amendment freedoms.

Fifth and finally, schools that are especially risk-averse can avoid offending atheists, polytheists and others concerned about theocratic government by using the pre-1954 version of the pledge, which didn’t have the words “under God.” Of course, if teachers loudly correct students who voluntarily say “under God,” or teachers otherwise campaign against nondisruptive students voluntarily expressing religious beliefs, then schools run the risk of promoting official disapproval of religion, which would be unconstitutional.

No matter what happens in regard to Newdow, schools must ensure that students are not coerced into reciting the pledge against their religious or political beliefs. Such coercion would violate the First Amendment’s guarantees of freedom of speech and freedom of religion. For instance, schools should be sensitive to the fact that children of Jehovah’s Witnesses object to saluting the flag and to reciting the pledge because their church teaches that such actions are a form of idol worship forbidden by the Ten Commandments.

Can students be forced to stand while other students recite the Pledge?

No, two courts have held that students cannot be forced to stand while other students recite the Pledge of Allegiance. In Goetz v. Ansell (1973) and Lipp v. Morris (1978), the 2nd and 3rd U.S. Circuit Court of Appeals, respectively, ruled that public school students could not be forced to stand silently while other students recited the pledge. The 2nd Circuit in Goetz explained: “the alternative offered plaintiff of standing in silence is an act that cannot be compelled over his deeply held convictions. It can no more be required than the pledge itself.”

Additionally, the 11th Circuit in July 2008 (Frazier v. Winn) found that a “standing at attention” clause in Florida law violated the First Amendment. However, the panel left the rest of the state statute intact, refusing to strike down part of it that allows students to be excused from reciting the pledge only by written request of their parent. In October 2009, the U.S. Supreme Court refused to hear an appeal in the case, as had the full 11th Circuit earlier.

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