DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 28                             July 2002

Pledge of Allegiance:

Recent Constitutional Controversy

Kathleen G. Harris, Senior Attorney

On June 26, 2002, in Newdow v. U.S. Congress, et al., a three-judge panel of the United States Court of Appeals for the Ninth Circuit found that the teacher-led recitation of the Pledge of Allegiance in California public schools and the federal statute’s inclusion of the phrase "under God" in the Pledge violated the Establishment Clause of the U.S. Constitution. The ruling is limited in application to those states comprising the Ninth Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington; its implementation has been stayed pending any appeals. Virginia’s Pledge statute and guidelines, carefully crafted based upon judicial precedent, will likely be viewed as helping ensure that public school Pledge recitation occurs not in a coercive or inculcating manner, but rather as an educational exercise reflecting "part of our nation’s civic heritage."

First Amendment Issues

Called into question in voucher programs, Pledge of Allegiance statutes, and school prayer initiatives is the Establishment Clause of the First Amendment, which provides a dual imperative that "Congress shall make no law respecting an establishment of religions, or prohibiting the free exercise thereof...." (emphasis added). The U.S. Supreme Court has extended the applicability of the First Amendment to the states through the Fourteenth Amendment, setting clear boundaries for interpretation as early as 1947. Finding that government may not endorse, fund, or "share power with" religion, the Court refused to invalidate a New Jersey initiative providing pupil transportation to public and parochial schools; the program was simply a method of ensuring safety and was not based on the students’ religious beliefs.¹  Further refinements to the Court’s reasoning followed in the 1960s, with decisions upholding textbook loans to sectarian school students and finding no violation of the Establishment Clause where the particular initiative had a "secular legislative purpose" and a "‘primary effect that neither advances nor inhibits religion.’"² 

It is the Court’s three-prong test articulated in 1971 in Lemon v. Kurtzman, however, that continues to guide state and federal judicial interpretations of the Establishment Clause. In Lemon, the Court ultimately struck down a Rhode Island initiative granting salary supplements for nonpublic schoolteachers and a Pennsylvania program reimbursing certain teacher salaries, textbooks, and instructional materials. Both initiatives required state government supervision. Building on its previous decisions requiring findings of secular purpose and neutrality in primary effect, the Court added the requirement that the program in question not involve "excessive entanglement" between government and religion. This "entanglement" would be examined on the basis of the "character and purpose of the institutions benefited," the nature of the state funding, and the "resulting relationship" between government and the religious institution.³ 

Pledge of Allegiance

The 2001 Session of the Virginia General Assembly adopted legislation directing that (i) all students be required to learn the Pledge of Allegiance and to demonstrate such knowledge and (ii) each school board require the daily recitation of the Pledge of Allegiance in each classroom of the school division and ensure that an American flag is in place in each classroom. Left to school board discretion was the determination of the appropriate time during the school day for the recitation of the Pledge. During the Pledge of Allegiance, students must either stand and recite the Pledge while facing the flag with their right hands over their hearts or in an appropriate salute if in uniform; however, no student can be compelled to recite the Pledge if he, his parent or his legal guardian objects on religious, philosophical, or other grounds. Students who are thus exempt from reciting the Pledge must remain quietly standing or sitting at their desks while others recite the Pledge and must not make any display that disrupts or distracts others who are reciting the Pledge. School boards must provide appropriate accommodations for students who are unable to comply with these procedures due to disability. School board codes of conduct will apply to disruptive behavior during the recitation of the Pledge in the same manner as provided for other circumstances of similar behavior. The Office of the Attorney General must intervene on behalf of local school boards and must provide legal defense of these provisions.

Legislative History and Current Law in Virginia

Pursuant to § 22.1-202 of the Code of Virginia, instruction in the "history and principles of the flag of the United States and the flag of the Commonwealth" is to be provided in one or more grades in every school division. This instruction is to include not only the Pledge of Allegiance but also, pursuant to amendments adopted in 1998, "the appropriate etiquette and conventions for respecting the dignity and appropriate display of such flags."

The Code section actually traces its genesis to 1916, when the General Assembly adopted legislation permitting "school authorities of each city and of each school district" to provide, upon petition, for the placing of a United States flag for "such public school within their jurisdiction…." In 1919, the Code of Virginia provided for the placement of a Virginia flag as well. By 1928, every teacher was statutorily required to "thoroughly instruct every pupil coming under his charge as to the history of the flags and the objects for which they stand." In 1942, teachers were to address, within the instruction regarding the "principles" that the flag represents, the Bill of Rights. Requirements for a Virginia flag were removed from the section, but resurfaced in Title 7 in 1956.⁸ 

The requirements to place flags in the public schools and to provide instruction, previously found in Titles 7.1 and 22, were simplified and stated as separate concepts in the new education title in 1980. Pursuant to § 22.1-133, state and federal flags would be flown "in accordance with protocol and in an appropriate place at every public school." In a single sentence, § 22.1-202 simply required instruction in the history of the two flags in one or more grades in each school division.⁹ 

Reference to the Pledge of Allegiance appeared in 1996, when a new subsection was added to § 22.1-202. "To promote compliance with constitutional restrictions as well as observance of constitutional rights," the Board of Education was directed to develop, in consultation with the Office of the Attorney General, guidelines addressing the "constitutional rights and restrictions relating to the recitation of the pledge of allegiance to the American flag in public schools." The guidelines were to include addressing the initiative and involvement of local school boards, individual schools, administrators, teachers, and students; the propriety and constitutionality of any recitation or participation requirements; appropriate etiquette and conventions for respecting the dignity and appropriate display of the flag of the United States and the flag of the Commonwealth; and relevant state and federal constitutional concerns, such as freedom of speech and religion.¹⁰ 

The 1998 Session of the General Assembly adopted legislation requiring instruction in the history and principles of the flags of the United States and the Commonwealth to include the appropriate etiquette and conventions for respecting the dignity and appropriate display of such flags. The Board of Education’s guidelines for pledging allegiance were also to include the appropriate etiquette and conventions for respecting the dignity of the flags.¹¹  With the publication of proposed guidelines in September 1997, the Board noted that the guidelines were "not intended as regulatory substitutes for local discretion, but rather as information and assistance to school administrators, teachers, parents and students." Five final guidelines were adopted, accompanied by brief analyses of pertinent issues and court rulings.

Necessarily cited in any discussion of the Pledge of Allegiance is the Supreme Court’s 1943 ruling—ironically, issued on June 14, Flag Day—in W.Va. State Bd. of Educ. v. Barnette, in which a state Board of Education regulation requiring all public school students to salute the flag and to recite the Pledge of Allegiance was found to be violative of the First and Fourteenth Amendments. Emphasizing the compulsory nature of the Pledge policy, the resolution had also stated that "refusal to salute the Flag [would] be regarded as an Act of insubordination" to be addressed by expulsion. Readmission would be permitted upon compliance with the policy. The Court found that the Board’s regulation "transcends constitutional limitations on their [the Board’s] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."¹² 

Subsequent challenges to Pledge recitation statutes have blended free exercise and free speech concerns. Citing the Barnette decision, the United States Court of Appeals concluded in 1981 that "while public schools may conduct patriotic ceremonies such as the pledge of allegiance, they may not compel participation by children who object on free exercise grounds."¹³  The issues of compulsion and penalties were visited in 1992 in Sherman v. Community Consolidated District 21, when the United States Court of Appeals examined an Illinois statute requiring daily recitation of the Pledge by pupils in public school. Responding to the defendant school district’s argument that the absence of any articulated penalty for refusal to participate "eliminated any compulsion," the Court stated that "penalties may be real (the displeasure of one’s teacher…) even though not administered by judges."¹⁴  While recognizing that "there remains social pressure…and a sense of exclusion when one’s beliefs enforce silence during a ceremony others welcome," the Court nonetheless ruled that the statute’s language should be construed to require participation by "willing" rather than "all" pupils, a construction that "makes sense of the statute without imputing a flagrantly unconstitutional act to the State of Illinois."¹⁵ 

Significantly, the Sherman Court distinguished its decision from Lee v. Weisman, also decided in 1992, in which the U.S. Supreme Court found graduation prayers a "form of compulsion" even though students might remain silent "without overt penalty." Seen as a patriotic, rather than religious, expression, recitation of the Pledge of Allegiance is not violative of the Constitution, so long as students are not compelled to "espouse the content of the Pledge as their own belief…."¹⁶  The Sherman Court concluded that the inclusion of the phrase "under God" did not render the Pledge a religious exercise, and stated that "[o]bjection by the few does not reduce to silence the many who want to pledge allegiance to the flag…."¹⁷ 

Having determined in Barnette that students cannot be forced to recite the Pledge, the judiciary subsequently clarified that public schools may not discipline students for refusal to participate in Pledge ceremonies. In Goetz v. Ansell, the Court of Appeals for the Second Circuit ruled that a student opting not to recite the Pledge need not stand or leave the classroom but may sit silently at his seat; because the state "cannot compel participation in the pledge, it cannot punish non-participation." The Court noted that while the option of leaving the classroom was not designed as punishment for non-participation, it might nonetheless be construed as such.¹⁸ 

Echoing a number of these decisions is the Virginia Board of Education’s analysis of its Pledge guidelines, which carefully distinguishes between reciting the Pledge of Allegiance as "an expression of personal belief and commitment" and merely learning the Pledge as "part of our nation’s civic heritage."¹⁹  In addition, the analysis also notes that inclusion of the phrase "one nation under God" does not render study or recitation of the Pledge of Allegiance a constitutional violation, as the judiciary has construed the language to reflect the nation’s "religious heritage."²⁰ 

Recent Developments

That schools must operate "within the confines of the First Amendment" is settled law.²¹  And yet, although the Barnette decision, the controlling judicial precedent in Pledge cases, is over a half-century old, controversy over the Pledge of Allegiance has continued in the public school setting. A number of state statutes and regulations have been challenged or modified to pass constitutional muster under Barnette. In the 1970s, state courts in Maryland, Florida, New York, and New Jersey reviewed Pledge statutes, considering exceptions for objecting students and teachers and forbidding disciplining nonparticipating students.²² 

A sampling of sister states reveals a range of Pledge of Allegiance statutes today. In Pennsylvania, officers and teachers in public, private, and parochial schools are to "direct the conduct of appropriate daily instruction or ceremonies, or, in lieu thereof, at least one full period per week, for the purpose of affirming and developing allegiance to and respect for the Flag…."²³  West Virginia, site of the Barnette decision, requires the commencement of each public school day with the Pledge, and simply excuses those students who do not wish to participate.²⁴  Similar statutes have been enacted in other states, including Georgia, North Carolina, South Carolina, and, of course, the Commonwealth.²⁵ 

Most recently, in June 2002, the constitutionality of a California statute and a corresponding local school division policy requiring the conduct of "appropriate patriotic exercises" at the beginning of each day in public elementary schools—a requirement that might be satisfied by the recitation of the Pledge of Allegiance—captured federal appellate court scrutiny, when a parent contended that the inclusion of the phrase "under God" in the Pledge and the leading of the Pledge recitation by his daughter’s elementary school teacher violated her rights under the First Amendment of the U.S. Constitution. Significantly, the suit did not allege any compulsion for his daughter, or other students, to recite the Pledge; rather, the crux of the claim rested in the alleged injury suffered by witnessing a perceived government endorsement of religion as the Pledge was led by a public school teacher in a public school setting.

Supporting the California statute in 1968 was the United States District Court, which declined to rule that the inclusion of the words "under God" rendered the Pledge "either a deprivation of the free exercise of religion or an establishment of religion within the meaning of the first amendment."²⁶  In its 2-1 ruling in Newdow v. U.S. Congress, et al., a three-judge panel of the Ninth Circuit Court of Appeals, however, applied various U.S. Supreme Court precedents, including the three-pronged Lemon test, ultimately ruling that (i) the inclusion of the phrase "under God" in the Pledge, and the teacher-led recitation, constituted a state endorsement of religion; (ii) the Pledge as codified in federal statute and its recitation under the California statute were "coercive" in the public school setting; and (iii) the contested phrase in the Pledge has, as its primary purpose, the advancement of religion.²⁷  On June 27, 2002, the judge authoring the 9th Circuit opinion issued a stay on the ruling pending any appeals.²⁸ 

Implications for the Commonwealth

The Ninth Circuit’s ruling in Newdow, limited to the nine states in its jurisdiction, could find ultimate review by the United States Supreme Court, which has never directly ruled on the constitutionality of the phrase "under God" enacted by Congress nearly a half-century ago.²⁹  While Newdow may prompt other states, including Virginia, to review their respective Pledge statutes, it is likely that the judiciary will rely on the predominant case precedent supporting public school recitation of the Pledge—and its questioned "phrase"—as permissible activities within certain parameters. Virginia’s Pledge guidelines, carefully crafted to follow judicial precedent, will likely be viewed as helping ensure that public school Pledge recitation occurs not in a coercive or inculcating manner, but rather as an educational exercise reflecting "part of our nation’s civic heritage."

Notes

 ¹S. Bauknight, "The Search for Constitutional School Choice," 27 J.L. & Ed. 525 at 527 n.11, 529 [hereinafter referred to as Bauknight], discussing Everson v. Bd. of Ed. of Ewing Township.

 ²Bauknight, supra, at 528-529, discussing and quoting Bd. of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968); also citing Sch. Dist. of Abington Township v. Allen, 374 U.S. 203 (1963).

 ³Bauknight, supra note 1, at 529-530, quoting Lemon v. Kurtzman, 403 U.S. 602 at 615 (1971).

 ⁴State v. Lundquist, 278 A.2d 263, 265-266 (1971); "JSU Professor an Expert on the Pledge of Allegiance," Newswire, Jacksonville State University (June 30, 1998).

 ⁵Veterans of Foreign Wars, Pledge of Allegiance, <http://www.vfw.com/amesm/poa.shtml> (Last modified: Wednesday, 10-Dec-97 10:37:38 CST).

 ⁶36 U.S.C.S. § 172 (1996).

 ⁷Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 1013-1014 (1940); see also, State v. Lundquist, 278 A.2d 263, 265-266 (1971), in which the Maryland Court of Appeals traces the history of various Pledge decisions, including the U.S. Supreme Court’s 1943 decision in West. Va. Bd. of Ed. v. Barnette.

 ⁸1916 Acts of Assembly, c. 169 (p. 327); Va. Code §§ 678, 679 (1919); Va. Code § 717 (1928); 1942 Acts of Assembly, c. 187; 1956 Acts of Assembly, c. 30.

 ⁹1980 Acts of Assembly, c. 559.

 ¹⁰1996 Acts of Assembly, cc. 122, 124.

 ¹¹1998 Acts of Assembly, c. 128; Division of Legislative Services, Session Summary (1998).

 ¹²W.Va. St. Bd. of Educ. v. Barnette, 319 U.S.624, 626, 629, 642, 63 S.Ct. 1178, 1179, 1181, 1187 (1943); Virginia Board of Education, Guidelines on Recitation of the Pledge of Allegiance at 3[hereafter referred to as Guidelines].

 ¹³Lanner v. Wimmer, 662 F.2d 1349, 1354 (10th Cir. 1981).

 ¹⁴Sherman v. Comm. Consol. Dist. 21, 980 F.2d 437, 442 (7th Cir. 1992).

 ¹⁵Id. at 442, 443. In a concurring opinion in Schempp, Justice Brennan suggests that excuses or exemptions from Pledge participation may be problematic, as "the State could not constitutionally require a student to profess publicly his disbelief as the prerequisite to the exercise of his constitutional right of abstention." 374 U.S. 203, 289.

 ¹⁶Id. at 443-444, 445; citing Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992).

 ¹⁷Id. at 445.

 ¹⁸Goetz v. Ansell, 477 F.2d 636, 637, 638 (2d Cir. 1973).

 ¹⁹Guidelines, supra note 12, at 4.

 ²⁰Guidelines, supra note 12, at 2, citing and discussing Lynch v. Donnelly, 465 U.S. 668, 676, 104 S.Ct. 1361 (1984); School Dist. of Abington Tp., Pa. V. Schempp, 374 U.S. 203, 304, 83 S.Ct. 1560, 1614 (1963).

 ²¹Board of Education v. Pico, 457 U.S. 853, 876 (Blackmun concurrence).

 ²²Md. Educ. Code Ann. § 7-105 (1997); State v. Lundquist, 278 A.2d 263, 265; 267; 272-273; 274(1971); Banks v. Bd. of Public Instruction, 314 F.Supp. 285 (S.D.Fla. 1970), vacated on procedural grounds 401 U.S. 988, 91 S.Ct. 1223 (discussed in 278 A.2d 263, 273); Richards v. Bd. of Education Union Free School Dist. # 17, No. 70-C-625 (E.D.N.Y. 1970), discussed in 278 A.2d 263, 273-274. See also, Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y. 1969); Lipp v. Morris, 579 F.2d 834 (1978); N.J. Stat. Ann. § 18A:36-3 (1989).

 ²³Pa. Stat. Ann. tit 24, § 7-771 (1992).

 ²⁴W.Va. Code § 18-5-15b (1994).

 ²⁵Ga. Code Ann. § 20-2-310 (1998 Supp.); N.C. Gen. Stat. § 115C-476 (29a)(1997); S.C. Code § 59-1-455 (1997 Supp.).

 ²⁶Smith v. Denny, 280 F.Supp. 651, 654 (E.D. Cal.1968).

 ²⁷Newdow v. U.S. Congress, et al., No. 00-16423, 2002 U.S. App. LEXIS 12576 (June 26, 2002).

 ²⁸Newdow v. U.S. Congress, et al., No. 00-16423, 2002 U.S. App. LEXIS 12826 (9th Cir. June 27, 2002); "Gov’t to ask rehearing of Pledge ruling; Judge stays Pledge decision pending appeals," CNN.com Lawcenter (June 27, 2002) <wysiwyg://4/http://www.cnn.com/2002/LAW/06/27/pledge.allegiance/index.html>

 ²⁹See Newdow, supra, n.12.

Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.

E.M. Miller, Jr., Director
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

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