Cases In Point

Cases In Point

Brooks, Michael


Elk Grove Unified School District v. Michael A. Newdow

Docket Number 02-1624

(U.S. Supreme Court)

This year the U.S. Supreme Court faced the difficult question of whether recitation of the Pledge of Allegiance in public schools violates the First Amendment. The Court avoided tackling this constitutional issue by deciding that the plaintiff did not have the right to bring the suit. Although this outcome disappointed many because it is a decision based solely on a technicality, the Court’s opinion may still have an effect on students, parents, and schools. Although the implications of this case appear narrow, it serves as a highlights two legal issues facing principals. First, the case discusses interesting nuances of the legal rights of parents; second, it gives some insight into the likely outcome of an inevitable future challenge to the Pledge in schools.

The Road to the Supreme Court

California law requires every public elementary school to start each school day with “appropriate patriotic exercises.” Pursuant to this law, Elk Grove Unified School District required every elementary school class to recite the Pledge once each day. But consistent with the Court’s decision in West Virginia Bd. of Ed. v. Barnette (319 U.S. 624 [1943]), students who objected on religious grounds were allowed to abstain from the recitation.

Michael Newdow objected to this practice of forcing exposure to the Pledge upon his daughter, a kindergartener in Elk Grove Unified School District. Specifically, he objected to the portion of the Pledge that was added by Congress in 1954, “under God,” as the “religious indoctrination of his child.” Newdow sued the school district, its superintendent, the president of the United States, and the state of California, alleging that the recitation of the Pledge in school violated the First Amendment Establishment and Free Exercise Clauses of the U.S. Constitution. The suit was dismissed by the trial court after the court concluded that the Pledge is not unconstitutional. Newdow appealed, nad a divided panel of the Ninth Circuit U.S. Court of Appeals declared that the school district’s policy violated the First Amendment.

After the Circuit Court announced its decision, the mother of Newdow’s daughter challenged Newdow’s right to bring the suit on behalf of their child. Newdow and the mother shared “physical custody” of the daughter, but a state court had previously granted the mother “exclusive legal custody,” and the mother opposed the suit. The mother stated that she and her daughter were Christians and had no objection to the recitation of the Pledge. She expressed concern that her daughter would be harmed by being associated with Newdow’s suit because “others might incorrectly perceive the child as sharing her father’s atheist views.”

On the basis of the mother’s status as legal custodian, Newdow was enjoined from suing on his daughter’s behalf. As a result, Newdow was forced to sue based on injury to his own “parental interests” rather than on behalf of his child. The Court of Appeals found that Newdow retained “the right to expose his child to his particular religious views even if those views contradict the mother’s,” and that the mother’s objections did not defeat Newdow’s right to seek redress for injuries to his own parental interests. The court then restated its opinion that the recitation of the Pledge violated the First Amendment.

The Supreme Court’s Decision

The school district appealed the Circuit Court’s decision to the Supreme Court, which considered “(1) whether Newdow [had] standing as a noncustodial parent to challenge the School District’s policy, and (2) if so, whether the policy offends the First Amendment.” Avoiding the second and most significant question, the Court found that Newdow did not have standing. Although this reversed the lower court’s decision and therefore allows schools to continue to recite the Pledge, it did not declare the Pledge constitutional; it left that issue for another day.

Before the Supreme Court reviewed this case, California state courts had already decided that, because the mother had exclusive legal custody of her child, Newdow did not have the legal authority to sue on behalf of his daughter without her mother’s consent. The Supreme Court was asked to determine whether Newdow had the right to sue for his own injury as a parent harmed by the alleged indoctrination of his daughter.

According to the Court, “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Although “disharmony in family relations” normally will not prevent federal courts from deciding cases, this case involved two considerations that weighed against reaching the merits of the case. First, Newdow’s right to sue was derived “entirely from his relationship with his daughter,” which was unclear under state law. This was particularly significant since federal courts generally defer to state courts in the realm of domestic relations. Second, it appeared that the daughter’s (and her mothers) interests did not coincide with Newdow’s interests. Therefore, the Court concluded that “it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing.”

What About Parental Rights?

In an attempt to avoid a difficult constitutional question, the Court may have reduced the rights of noncustodial parents in federal courts. The Court made it clear that had the father had the right under state law to sue on the child’s behalf, he would have had standing. However, where state law is unclear about the relationship of the parent to the child, standing may be denied if the court believes that the child’s interests differ from the objective of the parent. Although this is a limitation on noncustodial parents’ rights, the facts under which standing would be denied are narrow. The most significant effect of the Court’s decision may be to prevent non-custodial parents from using their children as pawns in federal courts if the suit is not in the child’s interest, but this result is limited to a narrow field of cases where legal custody is unclear.

What About the Flag?

Although the Court reserved its opinion regarding the constitutionality of the Pledge in schools, the concurring opinion by Justice O’Connor, who is often considered the swing vote on difficult issues, may provide insight into the future of the Pledge. Justice O’Connor wrote that the Pledge, and its use in school, is constitutional. O’Connor noted that the Supreme Court “has permitted government, in some instances, to refer to or commemorate religion in public life.” She rejected the “heckler’s veto” as a yardstick for measuring whether an action violates the Establishment Clause and noted the historical significance of the Pledge. Justice O’Connor concluded, “References to God and religion…are inevitable consequences of the religious history that gave birth to our founding principles of liberty [and] it would be ironic indeed if this Court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it.” Although this opinion has no binding effect, Justice O’Connor’s opinions often signal the direction the Court is likely to move.


For now, principals have a green light to continue the recitation of the Pledge in school, and if O’Connor’s concurring opinion is any indication of the Court’s future decisions, the Pledge is here to stay. The most significant rule to come from this decision is that noncustodial parents whose legal status is in dispute may be prevented from filing a lawsuit based on their parental status when their suit is deemed to be contrary to their child’s interest.

Although this case is likely to quickly slip into oblivion, it may be an indication of things to come and is a good reminder to principals that the rights of noncustodial parents can vary and change over time. It is important that principals be aware of what rights such parents have under state law to protect students’ privacy and prevent school liability.

Michael Brooks ( is a former high school American government teacher and is currently attending George Mason University School of Law.

Copyright National Association of Secondary School Principals Oct 2004

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