FACTS OF THE CASE (oyez.org)
Michael Newdow’s daughter, attended public school in the Elk Grove Unified School District near Sacramento, California. Elk Grove teachers began school days by leading students in a voluntary recitation of the Pledge of Allegiance, including the words “under God”, added by a Congressional act in 1954. Newdow, an Atheist, sued in federal district court in California, arguing that making students listen…even if they choose not to participate…to the words “under God” violates the Establishment Clause of the First Amendment of the U.S. Constitution. The district court dismissed the complaint for a lack of standing, because Newdow does not have legal custody of the child and therefore cannot bring a claim on her behalf. The Ninth Circuit reversed the custody ruling and further ruled that Congress’s 1954 act adding the words “under God” to the Pledge and the school district policy requiring it to be recited both violated the First Amendment’s Establishment Clause. Elk Grove appealed the Circuit Court’s ruling to the United States Supreme Court which granted Certiorari and heard the case. Which leads us to your assignment.
If you remember back in the unit on the judiciary, we talked about reasons the Supreme Court will both grant and deny Certiorari (cert). One of the reasons for denying cert was the presence of intractable issues (aka unintended consequences), which this case is full of. The Supreme Court, in my opinion, after hearing oral argument, decided there were massive, far-reaching and long-term ramifications for any decision they would make and tried to find a way out…which they did…when they ruled that Newdow did not have legal standing to bring the case and therefore there was no need to rule on the question of whether “under God” violates the Establishment Clause. Which was certainly a bummer for the litigants but fantastic for us.
Your task, acting as a Justice for the United States Supreme Court, will be to decide this case on the merits of the Establishment Clause claim. In other words, you will answer the following question,
“Does a public school policy, that requires teaches to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God”, violate the Establishment Clause of the First Amendment?”
To do that, you will complete the following:
1. I have included a basic summary of the facts of the case and the procedural history but make sure you research this in greater depth.
2. What is the history of the Pledge of Allegiance?
3. What does the education code for the State of California have to say about “appropriate patriotic exercises” in public schools?

4. Provide and explanation for each of the following relevant cases, theories and
1. Establishment Clause
2. Separationist Theory
3. Non-Preferentialist Theory
4. Minersville School District v. Gobitis (1940)
5. West Virginia v. Barnette (1943)
6. Lemon v. Kurtzman (1971)
7. Stone v. Graham (1980)
8. Marsh v. Chambers (1983) and the Traditional/Historical Approach 9. Lynch v. Donnelly (1984) and the Endorsement Test
10. Wallace v. Jaffree (1985)
11. Lee v. Weisman (1992) and the Coercion Test
12. Santa Fe Independent School District v. Doe (2000)
13. Zelman v. Simmons-Harris (2002) and the Neutrality Test
5. Listen to the oral argument (a very interesting and productive use of your time) or read the transcript of the oral argument and summarize the key points made by both Michael Newdow (who was a lawyer but had never argued a case in court before…until arguing before the Supreme Court) and Elk Grove Unified. Remember for our purposes, we will assume that Newdow has standing in the case so you can ignore any arguments in the transcripts that discuss that.
6. Research and briefly summarize the Amicus Curiae briefs submitted by the American Civil Liberties Union (ACLU) in support of Newdow and the Knights of Columbus in support of Elk Grove. Remember, Amicus briefs translate to “friend of the court briefs” which means they are submitted by groups not directly involved in the case but either have important information or perspectives to bring or could be impacted by the ruling of the court.
7. Finally, you are to craft a 3-5 page opinion (1.5 spacing and font no bigger than 12) answering the question posed and therefore deciding the case either in favor of Elk Grove Unified or Michael Newdow. Your opinion is just that…an opinion…and can be written in the first person. In other words, it will basically begin with “I, justice (insert your name) rule in favor of ____”. And then you will go on to explain your reasoning using sound legal argument, with references to the research you have done. You should address not only information supporting your decision, but also refute the arguments of the other side as well.

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