Elk Grove School District v. Nedow 

Can a school district start the day with the Pledge of Allegiance without violating the First Amendment?

Decided June 14

First Amendment law has been largely incompatible with federalism since, well, the incorporation of the Fourteenth Amendment. In this latest twist, the Court considered whether the Elk Grove School District--located outside of Sacramento--has the power to conduct a group Pledge of Allegiance to kick things off in the morning.  While school rules and patriotic exercises are, and always have been, matters of local concern, the mention of the word "God" in one of the stanzas was enough to convince concerned parent (and committed atheist) Mike Nedow-- and the 9th Circuit -- that a religious "establishment" was underway. 

Justice Stevens, writing for a 5-4 Court, took the ball and punted--the First Amendment questions here are irrelevant, he writes, since Mike Nedow has no standing (his wife has custody, and full parental rights, over the Pledge-inflicted student.) In an interesting, and in the words of the Chief, "novel" application of standing rules, Justice Stevens announced a special deference to state law when family law is at issue. (Never mind that the 9th Circuit--who would be typically deferred to in its interpretation of state law--thought Nedow had clear standing.) "When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question..."

The silliness of this standard and any claims to self-restraint aside, Nedow may be of greatest interest to our readers because of Justice Thomas' concurring opinion. According to Justice Thomas, the Establishment Clause is a  "federalism provision," that is, it protects the power of the states, not the rights of aggrieved citizens. Unlike the Free Exercise Clause, its logic fits uncomfortably with incorporation. The national courts, at the very least, should tread lightly when settling disputes in this area. Well, that's one vote for the admirable task of "beginn(ing) the process of rethinking" law in this tortured area.

Decision here

Ms. Banning's Amicus Brief, supporting Elk Grove

9th Circuit's Opinion (as amended February 2003)

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