School District’s Practice of Having Students Recite the Pledge of Allegiance – including “One Nation Under God” language – Is Constitutional

In a lengthy decision that includes an impassioned dissent, the Ninth Circuit has upheld a local school district’s practice of having students recite the pledge of allegiance to the American flag as part of a “patriotic exercise” designed to comply with Education Code section 52720.

At issue was whether the recitation of the words “one nation under God” runs afoul of the establishment clause of the First Amendment. In a 2-1 decision, the Ninth Circuit held that the practice meets constitutional requirement, particularly because the exercise is not designed for religious purposes, but rather, to instill a sense of unity and patriotism in students and to remind them of the nation’s history.

An eloquent dissent argues that the pledge existed for many years without the words “under God.” Those words were inserted by way of a 1954 Congressional enactment which occurred at a time when the nation was in the midst of the Cold War. That statutory history led the dissent to conclude that the purpose of the wording does, indeed, have a religious purpose which collides head on with the First Amendment prohibition that “Congress shall make no law respecting an establishment of religion . . . .”

The case is Newdow v. Rio Linda Union School District. A copy of the court’s opinion is attached.