"Pledge of Allegiance" Decision on Hold
On June 26, 2002, the United States Court of Appeals for the Ninth Circuit held that the 1954 addition of the words "under God" to the Pledge of Allegiance, and a California law requiring that the Pledge be given in public schools, violate the First Amendment. In Newdow v. U.S. Congress, et. al., Michael Newdow, an atheist, claimed that a public school violated his daughter's First Amendment rights by compelling her to watch and listen to her classmates give the Pledge.
The Establishment Clause of the First Amendment states that there shall be "no law respecting an establishment of religion." The Ninth Circuit found that the law in question failed each of the three tests that the United States Supreme Court has used in evaluating alleged violations of the Establishment Clause in the realm of public education. In particular, the Court found, "the statement that the United States is a nation 'under god' is an endorsement of religion" because the statement professes a belief in monotheism. The Court also found that the mere fact that a pupil is required to listen to the statement "one nation under God" has a coercive effect because it places students in the untenable position of choosing between participating in an exercise with religious content or protesting.
In assessing the coercive effect, the Court was particularly persuaded by the statements made by President Eisenhower in 1954 when he signed the Act adding "under God" to the Pledge of Allegiance. During the signing ceremony, Eisenhower stated, "[f]rom this day forward, the millions of our school children will daily proclaim in every city and town the dedication of our Nation and our people to the Almighty."
Newdow was decided by a two to one majority. The lone dissenting judge stated, "when all is said and done, the danger that ‘under God' in our Pledge of Allegiance will tend to bring about theocracy or suppress somebody's beliefs is so minuscule as to be de minimis."
The Ninth Circuit Court of Appeals has federal jurisdiction over cases from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Its decisions are not binding in New Jersey. The Ninth Circuit is widely regarded as the most liberal of the twelve courts of appeal, and is the Appeals Court most frequently reversed by the U.S. Supreme Court.
Judge Alfred Goodwin, who wrote the majority decision, has issued a stay that will delay the order's implementation pending appeals. The likely next step is an en banc (full court) reconsideration by the Ninth Circuit. Beyond that, the decision could be overturned by the U.S. Supreme Court or by an Amendment to the Constitution.
Unless the U.S. Supreme Court affirms the Ninth Circuit or a local court rules similarly, New Jersey will remain unaffected by the decision. A New Jersey statute requires that pupils in each school salute the United States flag and repeat the Pledge of Allegiance each day. Under the statute, students who have "conscientious scruples" against the Pledge or salute are not required to participate. See Lipp v. Morris, (N.J. 1978) (invalidated a provision of the statute that requires students to show full respect to the flag while the Pledge is being given). Pursuant to Lipp, students are not required to stand and should be permitted to leave the room during the exercise.
U.S. Supreme Court Upholds Drug Testing Policy
On June 27, 2002, the United States Supreme Court broadened its 1995 ruling that allowed public school districts to conduct drug tests on student athletes, and approved of random drug testing of all students who participate in extracurricular activities.
The Court rejected a Fourteenth Amendment challenge to the Student Activities Drug Testing Policy implemented by a public school district in Oklahoma. The policy requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity.
The Court examined the character of the intrusion imposed by the policy. According to the Court, the degree of intrusion on one's privacy caused by collecting a urine sample depends upon the manner in which production of the sample is monitored. Under the Oklahoma policy, a faculty monitor is required to wait outside the closed restroom stall and listen for the normal sounds of urination. The policy also requires that test results be kept in confidential files separate from other educational records and released to school personnel only on a "need to know" basis. The Court indicated that a teacher supervising an off-campus trip is someone with a "need to know."
Under the approved policy, test results are not turned over to any law enforcement authority and cannot lead to the imposition of discipline or academic consequences. The only consequence of a failed drug test is to limit the student's privilege of participating in extracurricular activities. After the first positive test, the school contacts the student's parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in all extracurricular activities for fourteen days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year.
The Court approved the Oklahoma school district's drug testing policy because of "the minimally intrusive nature of the sample collection and the limited uses to which the test results are put." A school district risks violating a student's Fourteenth Amendment rights if a policy is enacted permiting wide dissemination of drug test results. Similarly, a policy that requires more expansive testing or one that employs a more intrusive method of collection may violate the Fourteenth Amendment.
U.S. Supreme Court OK's School Voucher Program
On June 27, 2002, the United States Supreme Court held, in a 5-4 decision, that an Ohio school voucher program does not violate the Establishment Clause of the First Amendment. The Ohio program provides tuition aid for students to attend a participating public or private school.
Under the program, any private school, whether religious or nonreligious, may participate. In the 1999-2000 school year, 82% of participating schools had a religious affiliation and 96% of the participating students enrolled in religiously affiliated schools.
The Establishment Clause prevents a state from enacting laws that have the "purpose" or "effect" of advancing religion. The Court found that the program does not have the effect of advancing religion.
In finding that the program does not have the effect of advancing religion, the Court stressed that the program is one of private choice. Government aid reaches religious schools only as a result of choices made by private individuals. The program does not provide aid directly to religious schools. The Court also emphasized that assistance is made available to individuals defined without reference to religion and that all schools may participate regardless of whether or not they are religiously affiliated.
ERPA not Violated by Peer Grading
On February 19, 2002, the US Supreme Court held that peer grading, the practice by which students score each other's work, does not violate the Family Educational Rights and Privacy Act (FERPA). FERPA authorizes federal funds to be withheld from school districts that permit the release of students' education records without the written consent of their parents. The Court found that grades on students' papers are not "education records" at least until the teacher has recorded them in his or her grade book.
