ACLU Wins First Stage in Court: Students and Teachers Cannot Be Forced to Recite Pledge of Allegiance
On August 15, 2003, the Honorable Lewis Babcock, Chief Judge of the United States District Court for the District of Colorado, granted the ACLU's request for a temporary restraining order (TRO) barring the State of Colorado and four local school districts from enforcing Colorado's mandatory Pledge of Allegiance law. Judge Babcock found that the law, which required all public school students and teachers to recite the Pledge of Allegiance at the beginning of every school day, was very likely to be found in violation of the Constitution.
The Colorado law made it mandatory for all children in grades K through 12 and all teachers to recite the Pledge. As Judge Babcock found, "There is nothing precatory in that language, it is wholly mandatory." Although the law permitted students and teachers to object to reciting the Pledge on religious grounds, it did not permit those who had other reasons of personal conscience, such as political objections, to refuse. Students could also be excused if their parents objected, but their parents would first be required to disclose their objection in writing and submit that to the school's principal.
Applying the United States Supreme Court's opinion in West Virginia School Bd. v. Barnette (1943), Judge Babcock agreed with the ACLU's arguments that the Colorado Pledge law was likely to be found unconstitutional because the First Amendment prohibits government from forcing people to participate in speech against their will. In his oral ruling, Judge Babcock said "It doesn't matter whether you're a teacher, a student, a citizen, an administrator, or anyone else, it is beyond the power of the authority of government to compel the recitation of the Pledge of Allegiance."
Furthermore, the court rejected the State's contention that the law served legitimate educational values. The judge stated that "Pure rote recitation of a pledge such as this every day of the school year for one's tenure and matriculation through the school system cannot be said to be reasonable or legitimate in a pedagogical sense."
Judge Babcock also noted that the very existence of the law created a chilling effect on the ability of people to exercise their First Amendment rights. He noted that under Colorado law, students could be suspended or expelled and teachers could be fired for violating the Pledge statute.
Although Governor Owens at first asserted that he would fight the ruling, his lawyers later asked the court to "stay" the case (which means to temporarily stop any further legal proceedings) until the Colorado legislature has a chance to consider amending the statute to fix any constitutional problems. The court granted the stay, and extended the TRO until the legislature changes the law or the 2004 legislative session comes to a close without any such change.
In the meantime, both the Colorado Association of School Boards and William J. Moloney, the Commissioner of Education, have distributed memoranda to all school districts instructing them to abide by the terms of the TRO. In accordance with these statements and the court's ruling, no public school in the State of Colorado may force a student or teacher to recite the Pledge.
Is your school still enforcing the Pledge of Allegiance statute?
If you are a student or teacher in a Colorado public school and your school is compelling you to recite the Pledge of Allegiance, please contact the ACLU. For information on how to contact the ACLU about this issue and what information to provide, click here.