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Ninth Circuit Court of Appeals Finds Pledge of Allegiance Constitutional
Newdow v. Rio Linda Union School District, 2010 WL 816986
As counsel for the Rio Linda Unified School District, Porter Scott is pleased to announce that in a 2-1 decision, the Ninth Circuit Court of Appeals held that the School District’s policy of having teachers lead willing students in daily recitation of the Pledge of Allegiance does not violate the Establishment Clause of the United States Constitution. Rio Linda Unified School District was represented by Porter Scott partners Terence Cassidy and Mike Pott. The School District’s policy, in accordance with California Evidence Code section 52720, allows students who do not want to participate in the recitation of the Pledge to refuse to do so without penalty. This decision reversed a prior ruling by Senior District Judge Lawrence K. Karlton of the Eastern District of California which found the recitation of the Pledge to be unconstitutional.
In reaching its decision, the Ninth Circuit also upheld the Pledge’s words “Under God” as Constitutional. The Ninth Circuit found that taken in the context of the legislative background, the historical significance and the Pledge itself, recitation of the Pledge is a patriotic, as opposed to a religious, exercise. In a related case, the Ninth Circuit also upheld the constitutionality of our Country’s national motto “In God We Trust.” See Newdow v. Lefevre.
Newdow v. Rio Linda Unified School District stems from a series of actions filed by atheist Michael Newdow challenging the daily teacher-led recitation of the Pledge of Allegiance in public schools on the grounds that inclusion of the words “Under God” violates the Establishment Clause of the United States Constitution. In the earlier, highly publicized case filed against Elk Grove Unified School District, the Ninth Circuit found that a similar school district policy was unconstitutional. That decision was later reversed in a case Porter Scott presented to the U.S. Supreme Court on the grounds that Newdow did not have standing to bring the claim on behalf of his daughter. The Ninth Circuit’s decision in Newdow v. Rio Linda Unified School District reverses its prior decision in Newdow v. Elk Grove School District and is consistent with decisions made by the Fourth and Seventh Circuit Courts of Appeal that found similar statutes regarding recitation of the Pledge in public schools to be constitutional.
Newdow’s avenues for appeal are narrowing. He may challenge the Ninth Circuit decision by way of a Petition for Rehearing or request for Rehearing en Banc. Depending on the outcome of that decision, Newdow may also challenge the Ninth Circuit decision by way of Petition for Writ of Certiorari to the U.S. Supreme Court.
The Ninth Circuit rejected Newdow's petition for rehearing and/or rehearing en banc. Newdow thereafter declined to again seek certiorari review by the United States Supreme Court.
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