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Paper here The Pledge of Allegiance has been a source of controversy for years. Some students and parents view the words "under God" in the Pledge of Allegiance as government endorsement of religion under the Establishment Clause (as discussed later). This argument had failed in the Courts until 2002 when a panel of Ninth Circuit Court of Appeals ruled that state-mandated recitations of the Pledge in public schools were unconstitutional because of the words "under God". The Ninth Circuit Court of Appeals is among the most predictable groups of jurists in the United States. This decision galvanized patriotic Americans as they rallied in supoort of the war on terrorism, as the United States was just months away from the worst terrorist attacks in history. Most legal experts agree that this ruling will be overruled because in a number of past decisions, the Court has viewed references to God in patriotic exercises and on our money as "ceremonial deism" that does not rise to the level of government establishment of religion prohibited by the First Amendment.

In the flag-salute case of West Virginia v. Barnette in 1943, the United States Supreme Court explicitly extended First Amendment protection to students attending public schools. The Barnette case began when several students who were Jehovah's Witnesses refused to salute the flag for religious reasons. School officials punished the students and their parents. The students then sued, claiming violation of their First Amendment rights. At the time that the students sued, Supreme Court precedent painted a bleak picture for their chances. Just a few years earlier, the Court had ruled in favor of a similar compulsory flag-salute law in Minersville School District v. Gobitis. As the Court stated in that ruling, "National unity is the basis of national security." However, the high court reversed itself in Barnette, holding that the free speech and free exercise of religious provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience. Writing for the majority, Justice Robert Jackson said that the Supreme Court must ensure "scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principals of our government as mere platitudes."(1) The Court then warned of the dangers of coercion by government in oft-cited, eloquent language:

//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.(2)//

Clearly, the First Amendment applies to all levels of government, including public schools. Although courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students, like all citizens, are gauranteed the rights protected by the First Amendment.


 * __The Establishment Clause__**

The First Amendment states that the government may not "establish" religion. The meaning of the Establishment Clause, often referred to as "separation of church and state", has been much debated throughout history. Dating back to 1801, Thomas Jefferson described in his famous letter to the Danbury Baptists a "high wall of separation". In the last several decades, the Supreme Court has crafted several tests to determine when state action becomes "establishment" of religion. No one test is currently favored by a majority of the Court. Nevertheless, no matter what test is used, it is fair to say that the Court has been stricter about applying the Establishment Clause in public schools than in other government settings. For example, the Court has upheld legislative prayer, but struck down teacher-led prayer in public schools as in the cases of Marsh v. Chambers in 1983 and Engel v Vitale in 1962.(3) The Court applies the Establishment Clause more rigorously in public schools for two major reasons: Firstly, students are impressionable young people. Secondly, They are a captive audience required by the state to attend school.

When applying the Establishment Clause to public schools, the Court often emphasizes the importance of neutrality by school officials toward religion. This means that public schools may neither inculcate nor inhibit religion. They also may not prefer one religion over another, or religion over nonreligion. Therefore, neutrality means protecting the religious liberty rights of all students while simultaneously rejecting school endorsement or promotion of religion. Therefore, the Establishment Clause speaks to what government may or may not do. It does not apply to the private speech of students. School officials must keep in mind the distinction between government (school) speech endorsing religion, which the Establishment Clause prohibits, and private (student) speech endorsing religion, which the free speech and free exercise clauses protect.

Establishment Clause concerns may be raised by student religious expression when expression takes place before a captive audience ( ie: in a classroom) or during a school-sponsored event (ie: before a football game). Students have the right to pray alone or in groups. They may also discuss their faith with fellow classmates as long as they are not disruptive or coercive. Students do not, however, have the right to force a captive audience to participate in religious exercies, to deliver a proselytizing sermon, or give the impression that their views are supported or endorsed by the school.

Enforcing adherance to religious requirements, such as diet, dress, and prayer, is the responsibility of parents and students, not the school. However, some religious requirements may conflict with school practices. In those cases, the school officials should try to accomodate the needs of the student. For example, Jehovah's Witnesses may ask that their children be excused from holiday and birthday parties. Teachers should honor this request. Orthodox Jews and other students should be granted the right to wear head coverings for religious reasons. Muslim students should be granted the request to pray in a designated area in the school to meet their religious obligations. In my school, the superintendent granted permission for a Muslim girl to pray in the principal's office during the student's lunch period.

History of Pledge missing **__ West Virginia State Board of Education v. Barnette (1943) __** __ Case Background: __ In an effort to institute a curriculum which taught American values, the West Virginia State Board of Education ordered in 1942 that a salute to the American flag become a regular routine in program activities in all public schools. As such, all teachers and students were required to honor the American flag by saluting and reciting the pledge of allegiance. Refusal to participate in this daily ceremony was regarded as an act of insubordination. Individuals who failed to comply were subject to expulsion and were considered illegally absent until readmitted. In addition to expulsion, the guardians of the students were liable to prosecution and if convicted subject to a fine (not to exceed $50.00) and/or a jail term (not to exceed 30 days).

Many groups such as the Parent & Teachers Association, the Red Cross, the Boy & Girl Scouts, and the Federation of Women’s Clubs voiced their objections to this mandated ritual. They compared the required salute of the flag as “being too much like Hitler”. As a result, some modifications appeared to have been made to the salute. However, the concerns of Jehovah’s Witnesses were not acknowledged and no allowance was made for them.

In March of 1943 a Jehovah’s Witness named Barnette refused to allow his child to participate in the flag salute. Despite fruitful efforts to restrain enforcement of the law, West Virginia officials threatened to send Barnette’s son to a state reformatory. Subsequently, Barnette filed suit and challenged the law on 1st Amendment grounds, arguing that the salute conflicted with his religious beliefs. __ Key Points of the Defendant: __ · Barnette claimed freedom of religious beliefs. · The First Amendment clearly allowed for Barnette to have freedom of religious beliefs. · Jehovah’s Witnesses are bound by the Ten Commandments in the Bible and as such can not engage in any idol worship. The American flag represented a grave image that could not be worshiped (despite the respect they have for it) in their religion. · Children who followed the religion of Jehovah’s Witnesses should not be punished by expulsion because of their religious beliefs. · Difference of opinion found in this free country was and is not a sign of weakness but rather strength as a people. __ Key Points of the Plaintiff: __ __ Supreme Court Decision: __ With Justice Jackson writing the majority opinion, the court ruled by a 6-3 vote that the school district violated the rights of students by coercing them to salute the American flag; reversing the //Gobitis// decision handed down three years earlier. The court recognized that it was a serious infringement of religious liberties to compel an individual to engage in an act which conflicted with personal religious beliefs. The Supreme Court identified several factors which supported the decision ruled. The First Amendment affirms that individuals have freedom of conscience. It is based upon the conviction that all human beings have inalienable rights and that the government can not pass laws which force an individual to express ideas (including religious beliefs) he or she does not embrace. This Supreme Court decision officially extended First Amendment protection to students attending public schools. U.S. Court Justice Robert H. Jackson encapsulated the very essence of this case when he stated “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.” Minersville School District v. Gobitis was a decision by the [|Supreme Court of the United States] involving the religious rights of public school students under the [|First Amendment to the United States Constitution]. The Court ruled that public schools could compel students to salute the [|American Flag] and recite the [|Pledge of Allegiance] despite the students' religious objections to these practices. The Jehovah's Witnesses pronounced a doctrine that declared saluting the flag to be a form of idolatry which goes against their religion. In 1935, in Lynn, Massachusetts, a third-grader and Jehovah’s Witness Carleton Nichols refused to recite the Pledge of Allegiance and was expelled from school. This incident received widespread media attention, and other Witness students soon followed suit. This decision led to increased persecution of Witnesses in the United States. The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values". The Supreme Court overruled this decision a mere three years later, in [|West Virginia State Board of Education v. Barnette]  in 1943. **West Virginia** **State** **Board of Education v. Barnette (1943)** In the case West Virginia State Board of Education v. Barnette, a decision by the [|Supreme Court of the United States] held that the Free Speech Clause of the [|First Amendment to the United States Constitution] protected students from being forced to salute the [|American flag] and say the [|Pledge of Allegiance] in school. It was a significant court victory won by [|Jehovah's Witnesses], whose religion forbade them from saluting or pledging to political institutions or symbols. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs, but instead ruled that the state did not have the power to compel speech in that manner for anyone. ** Abington **** Township School District **** v. Schempp **** (1963) ** Abington Township School District v. Schempp began when Edward Schempp, a [|Unitarian] and a resident of [|Abington Township, Pennsylvania], filed suit against the [|Abington School District] in the Federal District Court for the Eastern District of Pennsylvania to prohibit the enforcement of a Pennsylvania state law that required his children, specifically [|Ellory Schempp] , to hear and sometimes read portions of the [|Bible] as part of their [|public school] [|education]. That law required that "[a]t least ten verses from the Holy Bible [be] read, without comment, at the opening of each public school on each school day." Schempp specifically contended that the statute violated his and his family's rights under the First and Fourteenth Amendments. On June 17, 1963, the Court decided 8-1 in favor of the respondent, Edward Schempp, and declared school sponsored Bible reading in [|public schools] in the [|United States] to be unconstitutional. It was their position that the reading of the verses, even without comment, possesses a devotional and religious character and constitutes in effect a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the demonstrating the intention to introduce a religious ceremony into the public schools of the Commonwealth. Lemon v. Kurtzman was a case in which the [|Supreme Court of the United States] ruled that [|Pennsylvania] 's 1968 Nonpublic Elementary and Secondary Education Act, which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools (most of which were [|Catholic] ) for teachers' salaries, textbooks and instructional materials, violated the [|Establishment Clause] of the First Amendment. The decision also upheld a decision of the [|First Circuit], which had struck down the Rhode Island Salary Supplement Act providing state funds to supplement salaries at nonpublic elementary schools by 15%. As in Pennsylvania, most of these funds were spent on Catholic schools. The Court's decision in this case established the " Lemon test ", which details the requirements for legislation concerning [|religion]. It consists of three prongs: If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the [|Establishment Clause] of the [|First Amendment to the United States Constitution]. ** Wallace v. Jaffree ** ** (1985) ** Wallace v. Jaffree was a [|United States Supreme Court] [|case] deciding on the issue of silent [|school prayer]. An Alabama law authorized teachers to set aside one minute at the start of each day for a [|moment] of "silent [|meditation] or voluntary [|prayer] ," and sometimes the teacher of the classroom asked upon a student to recite some prayers. Ishmael Jaffree was a resident of [|Mobile County], [|Alabama] and a parent of three students who attended public school school there. He brought suit against the Mobile County School Board, various school officials, and the minor plaintiffs' three teachers as defendants. Mr. Jaffree's sought a declaratory judgment and an injunction restraining the defendants from "maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile County Public Schools in violation of the [|First Amendment] as made applicable to states by the [|Fourteenth Amendment] to the [|United States Constitution] ." At issue was two of his children had been subjected to various acts of religious indoctrination through school prayer on a daily basis. Because they would not participate in the prayers his children were ridiculed. Mr. Jaffree had repeatedly but unsuccessfully requested that the prayers be stopped. The [|United States District Court for the Southern District of Alabama] allowed the practice and found in favor of the defendants. The [|United States Court of Appeals for the Eleventh Circuit] reversed, holding the law unconstitutional. The Supreme Court ruled, 6-3, that the Alabama law violated constitutional principle. ** Lee v. Weisman (1992)  ** Lee v. Weisman was a [|United States Supreme Court] decision regarding school prayer. It was the first major school prayer case decided by the [|Rehnquist] Court. It involved prayers led by religious authority figures at public school graduation ceremonies. The Court followed a broad interpretation of the [|Establishment Clause] that had been standard for decades at the nation's highest court, a reaffirmation of the principles of such landmark cases as [|Engel v. Vitale]  ( [|1962] ) and  [|Abington v. Schempp] , ( [|1963] ). When the principal of Nathan Bishop Middle School in [|Providence, Rhode Island], Robert E. Lee, invited a Jewish rabbi to deliver a prayer at the [|1989] graduation ceremony of Deborah Weisman, her parents requested a temporary restraining order seeking to bar the rabbi from speaking. When the [|Rhode Island district court] denied the Weismans' motion, the family did attend the graduation ceremony, and the rabbi did deliver a benediction. After the graduation, the Weismans continued their litigation, and won a victory at the First Circuit Court of Appeals. The school district appealed to the U.S. Supreme Court, arguing that the prayer was nonsectarian and was doubly voluntary, as Deborah was free not to stand for the prayer and because participation in the ceremony itself was not required. Arguments were heard on [|November 6], [|1991] , and many court watchers thought that [|Justice] [|Anthony Kennedy] , who had been critical of the Court's previous decisions on school prayer, would provide the crucial fifth vote to reverse the lower court's ruling and deal a major blow to the twin separationist pillars of //Engel// and //Abington//. The 5-4 decision was announced on [|June 24], [|1992]. It was a somewhat surprising victory for the Weismans, with Justice Kennedy, far from joining the conservative bloc that favored rolling back restrictions on school prayers, writing the majority opinion that preserved previous Supreme Court precedents that sharply limited the role that religion could play in the nation's public schools.
 * West Virginia State Board of Education claimed societal and national values supersede religious values.
 * Disrespect for the American flag should not be tolerated.
 * West Virginia was following a clear and legal precedent; three years prior in the //Gobitis// case the Supreme Court ruled that students may be mandated to salute the flag.
 * As stated by Justice Frankfurter in //Gobitis,// “national unity is the basis for national security.”
 * Patriotism and political responsibilities should override an individual’s religious freedom.
 * Refusal of some students to salute the flag and recite the pledge did not infringe upon the rights of other students.
 * The flag salute required students to declare a belief which contradicted their religious faith; a direct violation of their liberties.
 * The state could not demonstrate that any danger was created by the mere act of students remaining passive while others engaged in the salutatory exercise.
 * Forced compliance was not a legitimate means for creating national unity.
 * Allowing the rights of an individual to be supported over government authority was not a sign of weak government.
 * [|Minersville School District v. Gobitis] ****  (1940)  **
 * Lemon v. Kurtzman **** (1971) **
 * 1) // The government's action must have a secular legislative purpose ; //
 * 2) // The government's action must not have the primary effect of either advancing or inhibiting religion ; //
 * 3) // The government's action must not result in an "excessive government entanglement" with religion . //