CENTER FOR EDUCATION IN LAW AND DEMOCRACY
The Pledge of Allegiance: A Teachable Moment
Lesson Ideas
Judicial Reasoning and the Pledge
Colorado Law requiring daily recitation of the Pledge passed in May 2003. However, following a temporary Federal Court injunction, this law will be re-considered by legislators during the 2004 legislative session.
A Timeline
From the Colorado Legislature to the Federal Courts and Back Again

May 7, 2003. Mandatory Pledge of Allegiance bill is passed by the Colorado legislature

June 3, 2003. Governor Owens signs the mandatory Pledge of Allegiance Bill into law.

August 6, 2003. The mandatory Pledge law takes effect.

August 12, 2003. The American Civil Liberties Union in Colorado sues in federal court on behalf of three students and six teachers contending that the mandatory Pledge law violates their free speech rights.

August 15, 2003. U.S. District Court Judge Lewis Babcock temporarily blocks implementation of the law. In making his decision for a full hearing of this issue, the judge read extensively from the 1943 U.S. Supreme Court case, West Virginia Board of Education v. Barnette, in which the court held that the government cannot impose a compulsory pledge requirement on all school children. They found that to do so violates the free speech of children of Jehovah's Witnesses.

Governor Owens responded to Judge Babcock’s initial ruling by saying, "The court’s action is dramatically out of step with the desires and practices of most Colorado who value and respect the Pledge of Allegiance. It is important to note this order is temporary. When the trial begins, we look forward to arguing the case on its merits and establishing the constitutionality of this simple and common-sense law (Denver Post, August 17, 2003)."

August 22, 2003. State of Colorado lawyers ask Babcock to extend his temporary block through the end of the next legislative session until a new Pledge law can be crafted and take effect. Judge Babcock agrees.

January 2004. Pledge of Allegiance law will be reconsidered in the 2004 Colorado legislative session.


Teaching Ideas

1. West Virginia Board of Education v. Barnette would be an excellent case for additional study. Justice Jackson’s opinion could be used as the text for a Socratic Seminar. Another option is a moot court activity. The 1943 Barnette case was rather unusual, in that the Court was reconsidering a precedent set only three years earlier in the case of Minersville School District v. Gobitis, which upheld a mandatory pledge law. Be sure in working on this case that students recognize that the "under God" phrase was not part of the Pledge in the 1940s.

Follow up on the moot court activity by having students:
(1) research other Pledge-related cases decided since 1943; and
(2) compare the Colorado law and the West Virginia requirement. You might have students role-play arguments in the Colorado case using the information they have gathered and then take a position on how the courts will ultimately find in the Colorado case.

2. Following study of the Barnette decision, students can review the briefs filed by the State of Colorado and the American Civil Liberties Union in Lane, et al. v. Owens, et al. and conduct a modified moot court on the Pledge law. For classroom assistance in conducting moot courts, contact Sarah Wagner, Assistant Director of Public Legal Education, Colorado/Denver Bar Associations.

3. "Under God and the Pledge of Allegiance"
Students may have interest in the 2002 ruling of the 9th Circuit Federal Court for the Eastern District of California in Michael P. Newdow v. United States. Two Colorado teachers, John Zola and Jason Barnes, have developed a lesson plan focusing on the question, "Should the phrase 'under God' be retained in or removed from the Pledge of Allegiance?" Through a series of readings, students develop an understanding of the arguments supporting and opposing the inclusion of this phrase in the Pledge. They then write a persuasive letter advocating a position on the phrase. A class discussion culminates the lesson. To get a copy of this lesson, contact Jason Barnes.