The Supreme Court and Pledge of Allegiance: Does God Still Have a Place in American Schools?

The dearth of statistical or anecdotal evidence aside, combined with the relative lack of reported litigation, it appears that most students and teachers regularly participate in perhaps the most common daily school ritual by joining in the patriotic recitation of the Pledge of Allegiance (Pledge) and the salute to the American Flag. Yet, as discussed throughout this article, this daily practice has had a history of controversy, whether in schools or political settings. Turning specifically to schools, in Newdow v. United States Congress (Newdow), the Ninth Circuit set off a firestorm of controversy when, in a case from California, it initially struck down the words under God in the Pledge of Allegiance for violating the First Amendment\u27s prohibition of governmental establishment of religion. The court subsequently modified its initial judgment and struck the Pledge down on the basis that it coerced a religious act. Previously, in a case from Illinois, Sherman v. Community Consolidated School District 21 of Wheeling Township, the Seventh Circuit affirmed that the Pledge, including the words under God, was constitutional, as long as children were free not to participate in its daily recitation. Given the split between these circuits, the Supreme Court\u27s decision to hear an appeal in Newdow II, places the Court at the epicenter in the latest battle in the culture wars over the place of religion in American education. In light of the Supreme Court\u27s forthcoming ruling on the status of the words under God in the Pledge, this article is divided into the three sections. The first section of the article offers a brief history of the Pledge and flag salute, while the second section reviews reported litigation involving these rituals, including Newdow. The final section of the article ruminates on how the Justices are likely to respond to this challenge to the Pledge, Justice Scalia\u27s self-recusal from the litigation, and what this dispute means for the Court\u27s wider jurisprudence vis-a-vis the place of religion in the marketplace of ideas

Letters of Recommendation: Honesty Remains the Best Policy

Amid concerns over teacher sexual abuse and other misconduct involving students— although involving a very small percentage of educators—boards should strengthen their policies for evaluating the qualifications of potential teachers, including those with experience, by requesting letters of recommendation after they complete initial state-mandated criminal background checks. As crucial as letters of recommendation are in the hiring process, litigation demonstrates that some education leaders fail in their duty to safeguard children from sexual predators. Cases arose when officials provided undeserved positive reference letters for teachers who engaged in sexual misconduct with students—teachers who moved on to other school systems where they again misbehaved. In those cases, students and their parents sued education officials in the sending districts for providing essentially false references, thereby highlighting the need to have policies in place that require letter writers to be truthful and forthright. In light of the need to ensure that school boards protect children from teachers who may threaten their safety, the remainder of this column reviews cases wherein parents sued school boards alleging that officials failed to complete adequate background checks of teachers. Then, it offers recommendations for school business officials (SBOs), their boards, and other education leaders as they work to devise policies on letters of recommendation

Tenure Wars: The Litigation Continues

Teacher tenure is a controversial topic that continues to generate litigation. Parents and advocates of educational reform have filed claims alleging, in part, that school officials violate the rights of students who are not achieving academically largely because of the ineffective instruction the students receive from teachers. Typically, these suits also claim that conditions in districts where students perform poorly on academic measures are exacerbated by the protection that state tenure laws—in conjunction with union efforts—afford ineffective teachers, thereby making it difficult to dismiss the teachers for incompetence. In North Carolina Association of Educators v. State (2016), a North Carolina superior court held that a state law that would have stripped tenured teachers of their tenure rights violated the contract clause of the U.S. Constitution. A day earlier, in a case that has already been appealed to the California Supreme Court (Resmovits 2016), an intermediate appellate panel reached the same outcome in Vergara v. State (2016). Let’s take a closer look at the cases in North Carolina and California

Reutter’s The Law of Public Education

This textbook-casebook incorporates recent developments in education law into its conceptual framework by offering updated analysis of major topics in education law. With new material in all of its sixteen chapters, the book includes significant updates on church-state relations, employee rights, and student rights

Fair Share Fees, Teacher Unions, and the Supreme Court

Disputes over whether teachers who are not union members must pay for the benefits they receive under their bargaining contracts have been litigated for almost 40 years. Amid conflict over the ability of teachers’ unions to collect fair share fees from nonmembers, the Supreme Court re-entered the controversy in Friedrichs v. California Teachers Association (2016), leaving the door open to future litigation on the status of fair share fees

Religious Freedom in Faith-Based Educational Institutions in the Wake of \u27Obergefell v. Hodges\u27: Believers Beware

Solicitor General Donald Verrilli’s fateful words, uttered in response to a question posed by Justice Samuel Alito during oral arguments in Obergefell v. Hodges,2 likely sent chills up the spines of leaders in faith-based educational institutions, from pre-schools to universities. In Obergefell, a bare majority of the Supreme Court legalized same-sex unions in the United States. Verrilli’s words, combined with the outcome in Obergefell, have a potentially chilling effect on religious freedom. The decision does not only impact educational institutions—the primary focus of this article—but also a wide array of houses of worship. Other religiously affiliated institutions that may be affected include health and social services agencies, such as those working with adoptions 3 and ministering to the needy.4 These educational institutions and other agencies designed to assist the common good run the risk of being shuttered as a form of punishment, to the detriment of many, if they remain true to their faith—a decidedly un- American prospect

Supreme Court Docket Preview: Are Changes in the Offing?

During most Supreme Court terms, which begin on the first Monday in October and usually end in late June, the justices accept at least one case focused on education. Two cases before the current Court—Fisher v. University of Texas (2014) and Friedrichs v. California Teachers Association (2014)—have the potential to affect education significantly. Moreover, the sudden death of Supreme Court Justice Antonin Scalia on Saturday, February 13, 2016, may affect these and other cases, especially Fisher, considerably

Access to Facilities by Non-School Religious Groups: An Enduring Issue

Among the many duties of school business officials (SBOs), their boards, and other education leaders is establishing policies governing access to district facilities. When disputes over access are litigated, the judiciary walks a fine line, as courts generally grant school officials discretion in defining use policies. However, as discussed below, when it comes to granting access to public school facilities, educators cannot violate the constitutional rights of a group based on the religious content of its speech. In light of the enduring issue over access to facilities by nonschool religious groups, this column reviews relevant Supreme Court precedent before examining the Eighth Circuit’s analysis in Child Evangelism. Then, in the wake of Child Evangelism, four access options are presented for SBOs, their boards, and other education leaders