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Judge rejects pledge in school

Reciting the Pledge of Allegiance in a school classroom is unconstitutionally coercive, a Sacramento federal judge ruled Wednesday.

Saying he is bound by a 2003 federal appellate opinion, U.S. District Judge Lawrence K. Karlton found that teachers leading students in reciting the pledge, which contains the words "under God," is a violation of the Constitution's mandated separation of religion and government.

The suit was filed by Michael Newdow, a Sacramento atheist, physician and non-practicing attorney, on behalf of himself and two families whose children attend Sacramento-area schools.

As part of a 30-page order, Karlton invited Newdow to file a motion for an injunction that would bar students from reciting the pledge in the three school districts named as defendants in the suit. If Newdow asks for an injunction, Karlton said he would issue one.

The ruling was met with surprise and disappointment among school district officials.

"I think for purposes of schoolchildren, teachers, principals, administrators, school districts across the country ... it should be decided, for once and for all, whether the pledge recited by schoolchildren on a voluntary basis is constitutional," said Terence Cassidy, the attorney representing the three districts, Elk Grove Unified, Elverta Joint Elementary and Rio Linda.

District officials said they will consider taking the matter all the way to the U.S. Supreme Court for the second time, if necessary.

In the meantime, students who choose to recite the pledge will be permitted to do so until a court order bars the daily exercise, said Steven Ladd, superintendent of Elk Grove schools.

"We will continue to follow the law on whether or not our students may recite the pledge," he said.

On Wednesday afternoon, Elk Grove school officials sent an e-mail to principals stating that the pledge could still be recited in classrooms.

Quoting from the 2003 opinion of the 9th U.S. Circuit Court of Appeals, Karlton said that, even without requiring each child to recite the pledge, their "mere presence in the classroom every day as peers recite the statement 'one nation under God' has a coercive effect."

The appellate court said that the "coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren."

Newdow originally sued because he objected to his daughter being exposed to the pledge each day in her Elk Grove classroom. The Supreme Court found that because he didn't have primary custody of his daughter, he didn't have standing to sue.

Newdow, who was the lone plaintiff in that suit, filed a second suit that included two other families.

In that original case, the high court did not address the 9th Circuit's conclusion concerning the Elk Grove Unified School District's policy with respect to reciting the pledge, and Karlton said that part of the 9th Circuit's opinion is still precedent he must follow.

"It's unfortunate that the District Court has decided to simply follow the previous ruling by the 9th Circuit, rather than to review this matter anew," Cassidy said.

On Wednesday morning, before news of Karlton's ruling reached school district officials, about 30,000 elementary students in Elk Grove recited the pledge, including 7-year-old Ian Hamilton. "I like saying it," said Ian, a second-grader at Ellen Feickert Elementary School. "It just means the heart of America."

After school, a few parents agreed that school resources could best be spent elsewhere instead of defending the suit.

Elk Grove parent Lynda Bettencourt defended reciting the pledge. "This is what our nation was founded on," she said.

But the parents who filed the suit complain of the harm to their families, alleging they are made to feel like outsiders.

Karlton wrote in his order that those parents "have standing to challenge a practice that interferes with their right to direct their children's religious education."

If he issues an injunction barring recitation of the pledge, that would remedy the harm alleged by the parents and students, Karlton said.

Resolving the issue of harm also prevents Karlton from ruling on whether the phrase "under God" is constitutional, because the plaintiffs have not shown that the presence of those words harm them in some way beyond their children's experiences at school.

The parents also claim in the suit that they are subjected to recitation of the pledge at school board and other governmental meetings. But Karlton rejected those claims, saying the parents are complaining about policies and practices that do not require their participation.

The Supreme Court and the 9th Circuit have applied the coercion test and the "outsider" status claim with great restraint, the judge noted, recognizing them only in the context of children who are more likely to be pressured and negatively impacted. Adults are free to enter and leave public meetings at will, he pointed out.

Based on that reasoning, Karlton dismissed the part of the suit challenging the phrase "under God" and dropped from the lawsuit state and federal defendants, leaving only the three districts.

And, as the Supreme Court found last year, Karlton ruled that Newdow, who is the plaintiffs' attorney in the current lawsuit as well as a plaintiff, again has no standing to sue. Newdow was out of the state and could not be reached for comment Wednesday.

The other parents in the suit are not being named, and instead are using the pseudonyms Doe and Roe.

Jan and Pat Doe have a seventh-grader in an Elk Grove school. They are atheists and say their child is as well.

The Does contend their child "has been forced to experience the recitation of the pledge that has been led by public school teachers to the class and at assemblies. Plaintiff Doe child has suffered harassment by other students due to Doe child's refusal to participate in the pledge."

Jan Roe has two children, one a third-grader in the Elverta Joint Elementary School District and the other a kindergartner at a Rio Linda school. Jan Roe is an atheist who denies the existence of God, and his third-grader is a pantheist, who denies the existence of a personal God, according to Karlton's order.

The third-grader "has been forced to experience the recitation of the Pledge of Allegiance in her classes and has been led by her teachers in her class and at assemblies in reciting the pledge," the order says. The kindergartner has had similar experiences, it says.

State Superintendent of Public Instruction Jack O'Connell expressed disappointment in Karlton's ruling.

"Reciting the Pledge of Allegiance at the start of the school day is one of our country's great traditions and is an appropriate expression of patriotism to our country for students to learn and practice," O'Connell said.

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