Hall 1
The Pledge of Allegiance in public schools
Danielle Hall
22 June 2008
EDLD 641
Dr. Letzring
Hall 2
Danielle Hall
22 June 2008
EDLD 641
Dr. Letzring
Requiring recitation of the Pledge of Allegiance in public schools
Introduction
“I pledge allegiance to the flag of the United States of America, and to the republic for which it
stands...” Even the first few lines of the Pledge have undergone changes since its creation in 1892, and
some of the amendments that have been made to the patriotic refrain have been controversial to the
public eye (Baer, 2007).
One of the main objections to the Pledge occurs in the phrase “under God,” which was added to
the Pledge in 1954, and has been objected on account of violating the Constitution, specifically the
Establishment Clause of the First Amendment, the right to free speech, and the Equal Protection Clause
of the Fourteenth Amendment. It is argued that the reference to God in the Pledge is an endorsement of
religion and should not be required for anyone to say. However, there are many counterpoints to this
view which present arguments reaching all the way back to the Framers of the Constitution ,who
prayed a constitutional legislative prayer before every meeting (Trunk, 2008, p.571). Also, the idea of
ceremonial deism plays a role in many of the court decisions regarding the Pledge, which would
probably be the same defense should someone sue because their money says “In God We Trust,” our
national motto. Freedom of religion is arguably one of the most significant rights Americans have, and
overall, it is nationally assumed that the “God” our nation's motto and patriotic Pledge refer to is
representative of that freedom (Trunk, 2008, p.571).
Not only is some of the language and phrasing of the Pledge controversial, but several of the
cases that have been brought to court are in response to the requirements and standards in public
schools regarding the recitation of the Pledge. Most states had laws in place regarding placement of the
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flag and recitation of the Pledge. Many of these requirements and practices of recitation in public
schools went unquestioned until the Twenty-first century (Trunk, 2008, p.571).
History of the Pledge
In attempt to create a quick patriotic refrain for an assembly for Columbus Day, Francis
Bellamy composed the Pledge of Allegiance in 1892. Bellamy was a Christian Socialist and also a
chairman of state superintendents of public schools, both of which influenced his wording of the
Pledge. The original text of the Pledge read: “I pledge allegiance to my Flag and to the Republic for
which it stands, one nation, indivisible, with liberty and justice for all.” Bellamy had drafted the word
“equality” into the Pledge, but he removed it from the Pledge knowing the state superintendents would
disapprove as they still didn't believe in the equality of women or African Americans, and he wanted it
recited in public schools (Baer, 2007).
The words “of the United States of America” were added after “the Flag” in 1923 and 1924,
and then no other changes were made until 1954. It was then that the Knights of Columbus added the
phrase “under God” after “one nation.” This addition made the Pledge “both a patriotic oath and a
public prayer” (Baer, 2007). It was this addition that eventually caused the most uproar and many of
the following cases exist due to this addition.
The Pledge had been originally created for use at an assembly and then for daily use at public
schools to create unity and national pride among students in those public schools. Ever since its
creation, there have been state and federal laws created amending the requirements for the recitation of
the Pledge in public schools. Many schools required the pledge be recited every morning with the
students holding their right hand over their heart, and others had a time set apart for the Pledge but
allowed the students to opt out of the Pledge should they have obtained written consent from their
parents.
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There was an amazing growing popularity of the recitation of the Pledge after the attacks of
September 11, 2001. Everyone in America reached out to show their patriotism and national support,
and many of the ways they showed this support included the Pledge of Allegiance, the national anthem,
“God Bless America,” and other related poems, songs, and sayings. This outpouring of patriotism and
apparent belief in a higher being eventually led to nonreligious dissenters speaking out against using
these as a national movement and quite possibly led to the increasing number of lawsuits regarding the
Pledge in public schools.
Church v. State
The separation between Church and State has been an issue since the creation of public schools
in 1830. Before public schools were created, almost all teachings and education, formal or informal,
had been done with Biblical pretenses. Many early teachings, starting all the way from teaching the
letters of the alphabet with Biblical references and going to teaching literary devices through the
Biblical text, were tied into the Bible and Christianity (Alexander & Alexander, 2003, p.131-132).
When Horace Mann created public schools, he aimed at a secular education but allowed for some
religious activities to be held in school. His original opposition came from clergymen who argued that
the public schools were set to be “'Godless' institutions” (Alexander & Alexander, 2003, p.133).
Eventually, to satisfy the discourse between the Godly and the Godless, a ratification was made
to the Constitution. In 1971, the First Amendment of the Bill of Rights provided that “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”. This
amendment was explained further by Jefferson as an attempt to create a wall of separation between the
church and state (Alexander & Alexander, 2003, p.135).
This wall of separation between the church and the state brought much to question in the eyes
of public schools and the Court systems. Several tests were put in place to make sure the church and
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the state stayed separate, each of which will be discussed in the following paragraphs. Recently,
however, the U.S. Supreme Court “have rather conclusively leveled the historic wall of separation
between church and state held to be a a basic principle of rights and liberties as seen by Adams,
Madison, Jefferson, and Washington” and they have moved to removed the law against “entanglement”
of the church and state as stated in the Lemon Test (Alexander & Alexander, 2003, p.138).
While there are still ties between the church and the state, they have diminished since the
establishment of public schools, and whenever there is no clear wall up between church and state, there
are bound to be objectors.
Three Tests and the Constitution
Cases against the recitation of the Pledge are judged according to their constitutionality, so it is
important to understand the parts of the Constitution that are related to freedom of religion, freedom of
speech, and Equal Protection. It is also important to be familiar with the tests that have been developed
to determine constitutionality of certain circumstances that have occurred in public schools.
The main Amendments in the Bill of Rights that lend themselves to cases regarding school
prayer, the Pledge of Allegiance and related cases are Amendment I and Amendment XIV. The First
Amendment lends itself more specifically to the Establishment Clause and the Free Exercise Clause.
The Establishment Clause states that the government may not establish or endorse a religion, and the
Free Exercise Clause states an individual's right to choose their religion. “With regard to the Free
Exercise Clause, and religious activities in public schools, it should be remembered that the Supreme
Court distinguishes between the freedom of individual beliefs, which are absolute and the freedom of
individual conduct, which is not” (Alexander & Alexander, 2003, p.139).
There are three “tests” in place to determine the constitutionality of a practice in public schools
related to religious freedoms: The Endorsement Test, the Lemon Test, and the Coercion Test. Each of
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these three tests have been created and amended slightly in their uses towards cases, and none have
been proven to be the end-all answer to a case on religion.
The Endorsement Test was created by Justice Sandra Day O'Connor in response to the Lynch v.
Donnelly case in 1984 to determine if a government agency was endorsing a specific religion. The test
says that any action taken by the government creating an idea that they are endorsing or disapproving
of a specific religion is invalid and unconstitutional as part of the Establishment Clause of the First
Amendment (Lynch v. Donnelly, 1984).
The Lemon Test was a three part test to determine the constitutionality of religious events. It
came about from the Lemon v. Kurtzman in 1971. It also created its standards based on the
Establishment Clause and stated: “(1) Legislation or governmental action must not have a religious
purpose; (2) Legislation or governmental action must not have the primary effect of either enhancing
or inhibiting religion; and (3) Legislation or governmental action must not create excessive
entanglement between church and state” (Alexander & Alexander, 2003, p.137).
The third test used to determine constitutionality of religious events is the Coercion Test. The
Coercion Test was part of the Lee v. Weisman decision in 1992 stating that several practices may be
leading to indirect coercion of students and that no student should be subject to a religious practice
without choosing to be part of it himself (Lee v. Weisman, 1992).
These tests and specific amendments and clauses of the Constitution will be discussed in more
detail in the following paragraphs as to how they affected several cases.
Minersville School District v. Gobitis
Minersville v. Gobitis was a case regarding the constitutionality of holding a daily salute to the
flag in public schools and requiring students to take part in the salute. In 1940, two students at a public
school in Minersville, Pennsylvania refused to salute the flag with the Pledge of Allegiance due to their
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beliefs; they were Jehovah's Witnesses and believed the act of the salute was forbidden by Biblical
commands. (Minersville v. Gobitis, 1940).The case was deemed by the Court to be a “conflict between
'the liberty of conscience' and the 'authority to safeguard the nation's fellowship'” (Strasser, 2007). The
case surrounded the idea that the salute to the flag might infringe on an individual's religious beliefs,
especially because the students were at such an impressionable age. However, the school district argued
that removing the routine under such a premise would “[tear] asunder” the “fabric of the nation”
(Strasser, 2007). The court upheld the mandatory flag salute in order to maintain a “national cohesion
and unity” (Minersville v. Gobitis, 1940).
West Virginia v. Barnette
In a case just a few years later, the decision from Minersville v. Gobitis was overturned, and
requiring the salute of the flag was deemed by the Supreme Court to be unconstitutional. In West
Virginia v. Barnette, students were punished for “insubordination” if they refused to take part in the
daily practice of saluting the flag. The parents of some students sued the school district, and the Court
decided the practice of saluting the flag was a form of speech, and therefore the children should have
the right to refrain from the practice according to the First Amendment. Justice Jackson reiterated the
importance of free speech and religion in his majority opinion: “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” (West Virginia v.Barnette, 1943).
Elk Grove Unified School District v. Newdow
In the Elk Grove v. Newdow case, the words “under God” were the source of contention in the
courts. Michael Newdow had a daughter in California public schools which had a daily voluntary
recitation of the Pledge every morning before school. Due to the phrase “under God” in the Pledge,
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Newdow sued on account of a violation of the Establishment Clause of the First Amendment, whether
the child recited or just listened to the Pledge daily. He argued that having that in place at a public
school was endorsing religion.
The Newdow case strayed from the original intent and focus as Michael Newdow was found
not to be the primary caretaker of his daughter, and the case changed into more of a custodial battle. In
seemingly somewhat of a side note, the Court did rule that the voluntary practice of reciting the Pledge
was indeed constitutional (Elk Grove v. Newdow, 2004).
Frazier v. Alexandre
A 1942 decision regarding the Pledge of Allegiance in public schools was a precursor to a
monumental decision in Florida state courts in 2006. As an attempt to further the respect shown for the
government and patriotism, the 1942 state law required that all students stand and recite the Pledge
with their class unless they had obtained written parental permission to opt out of doing so.
This option to not participate seemed to hold over dissenters to reciting the Pledge until 2006
when Cameron Frazier decided not to stand and not to speak the words of the Pledge with his
classmates. He refused to stand for the Pledge in Algebra class despite verbal instructions from his
teacher, and he was “verbally castigated” and removed from class. Frazier sued the school district for
infringement of the First and the Fourteenth Amendments: his rights to free speech (or silence), his
rights to religion, and his Equal Protection rights.
Frazier's case was not heard when originally brought to court because the courts ruled that he
had no bearing to sue having never turned in the parental permission to refrain from taking part in the
Pledge and was seen as assuming a third party's (his parents') rights. However, they soon overturned
that decision because Frazier's objection was neither to or about the actual Pledge, it was simply from
his “compelled participation” in the exercise. His feeling of compulsion to participate violated the
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Coercion Test, which was seen as the main violation in Frazier's favor. The government, a school, or
any public organization may not force or coerce a student to say anything, religious or otherwise, in a
public setting; the student must have the ability to refrain without punishment from this practice.
Thus, the federal state court of Florida in the case of Frazier v. Alexandre decided that requiring
students to stand and participate in the Pledge violates the First and Fourteenth Amendments. (Frazier,
2006). Previous court decisions that were used in the ruling for Frazier included West Virginia State
Board of Education v. Barnette, 319 U.S. 624 (1943) and Elk Grove Unified School District v.
Newdow, 542 U.S. 1 (2004), which will be discussed in the following paragraphs.
Mississippi Law
With each state having its own laws regarding the Pledge of Allegiance in public schools, it is
important to examine the states and their laws separately. Laws in Mississippi are similar to many other
states in the region. Being in the “Bible Belt,” one would think there would probably be few objectors
to the recitation of the Pledge in public schools, and more importantly few objections to the phrase
“under God.” Whether or not the students are protesting the phrase “under God,” the Mississippi code
calls for the possibility of opting out of the pledge, which has to be recited once a month (Mississippi
Code Ann. § 37-13-5 and § 37-13-6).
Mississippi also has its own state Pledge which reads: “I salute the flag of Mississippi and the
sovereign state for which it stands with pride in her history and achievements and with confidence i her
future under the guidance of Almighty God.” This pledge was adopted in 1972 and was required that it
be taught in Mississippi public schools along with the national pledge. Mississippi's pledge has a more
explicit reference to a deity with more religious ties when it reads “Almighty God,” and there would
probably be more dissension in other parts of the country. Again, students are given the option of
opting out of saying the pledge, but they are still taught it in the schools and they need parental
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permission to refrain from the recitation.
Future Implications
There are many ideas in place for amendments to the Pledge as the objections to the phrase
“under God” increase. The way the Constitution and the Bill of Rights read now, the phrase can be
determined to be a violation of the Establishment Clause and of the right to free speech and religion of
students, therefore some sort of change is inevitable.
Because of the numerous objections, there are a growing number of proposals as to what
changes need to be made in the text of the Pledge and/or in the laws themselves. Some of the proposals
include simply removing the phrase “under God,” adding additional phrases to incorporate other
religions, or removing the phrase and adding other words or phrases. One possible change orchestrated
by liberals reads: 'I pledge allegiance to my Flag, and to the Republic for which it stands, one nation,
indivisible, with equality, liberty and justice for all.' And yet another draft, created by prolife
advocates, reads: 'I pledge allegiance to the Flag of the United States of America and to the Republic
for which it stands, one nation under God, indivisible, with liberty and justice for all, born and unborn.'
Some sort of change is believed to be possible and probable within the next decade. (Baer, 2007).
Related Issues
Along the same lines of the objections to the phrase “under God” and the requirements to recite
the Pledge in schools come the protests against school prayer and mandated moments of silence in
public schools. Some of the following cases and tests described have been used to determine the
constitutionality of the Pledge cases.
Prior to 1948, many schools allowed specific time periods of the day to be devoted to religious
purposes, should the students so choose. Some of the schools allowed this time for religious
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instruction, others for Bible studies or activities outside the school. In 1948, however, the McCollum
case challenged the constitutionality of such a practice. The court ruled that allowing and maintaining
this set-apart time during the regular school day for religious practices violated the Establishment
Clause of the First Amendment (McCollum v. Board, 1948).
Another very significant and related case involves school prayer. Many schools started each day
with a school-wide prayer and readings from the Bible up until 1962. In New York, the prayer that was
recited every day was standardized between all public schools and “acknowledged dependence” to the
“Almighty God.” By reciting this prayer daily, New York was endorsing religion. This practice was
deemed unconstitutional as it violated the Establishment Clause of the First Amendment (Engel v.
Vitale, 1962).
In another case about school prayer, Santa Fe v. Doe, an “overtly Christian” prayer was offered
by a student representative at the start of a high school football game. While this prayer was studentled and student-initiated, it violated the Establishment Clause of the First Amendment as determined
by the Coercion Test. Many of the students in attendance at the football game, the players,
cheerleaders, band members, had no choice in their attendance at the game and therefore they were
subject to the prayer whether they wanted to be or not. There was a balancing test done as well
between the community standard and the forum that the prayer was in (Santa Fe v. Doe, 2000).
In Marsh v. Chambers, the constitutionality of a prayer to begin a legislation session was
challenged. The prayer was given by a state-funded chaplain, and was taken to court by two different
parties. The court upheld the practice of the legislature, and used the Lemon test to prove its
constitutionality. Similar practices had been done by the First Congress of the United States as well as
the Framers of the Constitution, and it was part of the national customs (Marsh v. Chambers,
In one final example, Sherman v. Community Consolidated School District, the phrase “under
God” was determined to be more of a secular phrase than a religious one, and they linked it to a
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ceremonial deity, which does not violate the Establishment Clause. With this case, none of the three
formal tests were applied, and instead the courts relied on the history of our nation and the patriotic
practice of the Pledge (Trunk, 2008).
Conclusion
The Pledge of Allegiance was originally written to be a quick and to the point patriotic salute to
the nation. Due to the somewhat controversial addition of the phrase “under God” in 1954, several
cases have been brought to court in response to the constitutionality of the requirement to recite the
pledge in a public school setting. Very few cases were filed until within the last decade and a half, and
an overwhelming growth of cases of the Pledge and similar topics since the terrorist attacks of
September 11. With the significant increase in the amount of flags displayed, patriotic attitudes, “God
Bless America,” and the Pledge after the attacks, it gave way to more people objecting to the
enhancement or promotion of religion by public institutions.
Some of the most prominent cases involving the Pledge of Allegiance are Elk Grove v.
Newdow, Minersville v. Gobitis, and Frazier v. Alexandre. The Constitutionality of all of these
situations in the law suits were determined using three tests, the Coercion test, the Lemon Test, and the
Endorsement Test. These tests are arguably inconclusive and subjective in some situations, but they
were created as tests to maintain the rights established and outline in the First and Fourteenth
Amendments.
The issue of the recitation of the Pledge of Allegiance in public schools may remain in the
forefront of the society until the phrase “under God” is removed or a similar change is made. The
courts generally have extremely close decisions when deciding cases on religion, and many of the cases
that have gone to court regarding school prayer and meditations have been 5-4 decisions. One of the
Courts main objectives is maintaining a patriotic, national attitude in the country. This is important for
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the Courts in the hopes that we really may be “...one nation, under God, with liberty and justice for
all.”
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Works Cited
Alexander, K. & Alexander, M.D. (2003). The law of schools, students, and teachers. St. Paul: West.
Baer, John. (2007). The Pledge of Allegiance, A Revised History and Analysis. Annapolis, Md: Free
State Press, Inc.
Duncan, R.F. (2007). Liberty under law: 400 years of freedom: Justice Thomas and partial
incorporation of the establishment clause. Regent University Law Review, 20, p.37.
Elk Grove Unified School District v. Newdow. 542 U.S. 1 (2004).
Engel v. Vitale. 370 U.S. 421 (1962).
Frazier v. Alexandre. No. 05-81142 S.D. Fla. (2006).
Lee v. Weisman. 505 U.S. 577 (1992).
Lemon v. Kurtzman. 403 U.S. 602 (1971).
Lynch v. Donnelly. 465 U.S. 668 (1984).
Marsh v. Chambers. 463 U.S. 783 (1983).
McCollum v. Board of Education Dist. 71, 333 U.S. 203 (1948).
Minersville School District v. Gobitis. 310 U.S. 586 (1940).
Picarello, A.R., Jr. (2006). Religion in the public schools: Establishing anti-foundationalism through
the Pledge of Allegiance cases. UNC Law - First Amendment Law Review, 5, p.183.
Santa Fe v. Doe. 530 U.S. 290. (2000).
Strasser, M. (2007). Establishing the pledge: On coercion, endorsement, and the marsh wild card.
Indiana Law Review, 40, p. 529.
Trunk, W. (2008). The scourge of contextualism: Ceremonial deism and the establishment clause.
Boston College Law Review, 49, p.571.
West Virginia v.Barnette. 19 U.S. 624 (1943).