LEP: PART 2 – MORAL AND LEGAL ISSUES 1
Legal Entanglement Project Part 2
Lea C. Birmingham
School of Education, Liberty University
EDAS 747: Advanced Educational Law
Author Note
Lea C. Birmingham
I have no known conflict of interest to disclose.
Correspondence concerning this article should be addressed to Lea C. Birmingham
Email: lbirmingham2@liberty.edu
LEP: PART 2 – MORAL AND LEGAL ISSUES 2
Analyzes the Data
The potential legal implications of requiring the pledge of allegiance to be recited in
school. The Texas Education Code Sec. 25.082 states, “School districts must require students to
recite the pledge of allegiance daily on each campus. Schools must also hold a one minute of
silence following the pledges of allegiance to the United States and Texas flags. Teachers must
ensure that their students remain silent and do not act in a manner that interferes or distracts
another student’s time to reflect, pray, meditate, or engage in any other silent activity”.
I spoke with colleagues and parents about their feelings regarding students being required
to pledge allegiance to the flag daily. My conversations with my colleagues focused on receiving
input on my suggested changes to Dallas ISD’s board policy on students pledging allegiance to
the flag. I received overwhelming support for my suggestion to govern The Pledge of Allegiance
like schools govern prayer.
The dyslexia therapist at my school pointed out that replacing the reciting of the pledge
with a school-wide code of conduct, mission statement, or motto could be problematic for
students with disabilities such as dyslexia and specific learning disabilities, as they will have a
much harder time learning and adapting to a new morning ritual; furthermore, they have
mastered the Pledge of Allegiance because they have recited it repeatedly since a very young
age, this will not be the case if it is replaced with something new.
When speaking with parents, I asked them all four questions; 1) How does it make them
feel knowing the state requires their child to recite the Pledge of Allegiance daily? 2) Were they
aware that reciting the pledge was optional for their child? 3) Did they think their child knew
reciting the pledge was optional? 4) How would they feel if the school banned reciting the
Pledge of Allegiance? For question one, every parent I spoke with expressed indifference
LEP: PART 2 – MORAL AND LEGAL ISSUES 3
regarding their child being required to recite the pledge of allegiance. None of the parents I
talked to knew that reciting the pledge was optional, and they were confident that their child was
also unaware. Interestingly, despite being indifferent to the pledge, some parents wanted their
children to stay unmindful of their option to opt out of reciting it, not for patriotic reasons but
simply for their children to continue to follow school rules. As for question one, most parents
stated they would not care if schools banned the Pledge of Allegiance. However, two parents I
spoke to wanted to know what the pledge would be replaced with.
The 2002 Elk Grove Unified School District vs. Newdow case and the 1943 West
Virginia State Board of Education v. Barnette case addressed school policies regarding reciting
the Pledge of Allegiance. Furthermore, as recently as 1998, the Fallbrook Union High School
District of San Diego, California, was forced to change a district policy after a student filed a
lawsuit for being required to stand during the pledge of allegiance (US Legal, n.d.). Justice Frank
Murphy in West Virginia State Board of Education v. Barnette wrote in his opinion, “The right of
freedom of thought and religion as guaranteed by the Constitution against State action includes
both the right to speak freely and the right to refrain from speaking at all, except in so far as
essential operations of government may require it for the preservation of an orderly society,-as in
the case of compulsion to give evidence in court.”, West Virginia State Board of Education vs.
Barnette, 319 U.S. 624 (1943).
Analyzes the Policy
Dallas Independent School District (Dallas ISD) is the second-largest school district in
Texas. As with the other large urban school districts in Texas, Dallas ISD has a large percentage
of minority students. The school district has a 94.6 percent makeup of minority students, with
70.9% being Hispanic and 84.3 coming from economically disadvantaged homes, My Data
LEP: PART 2 – MORAL AND LEGAL ISSUES 4
Portal (2023). The demographic makeup of the school district does not reflect the ideology of
Francis Bellamy, a minister and the author of The Pledge of Allegiance, who argued that "every
alien immigrant of inferior race” corrupted traditional values, and that pledging allegiance would
ensure “that the distinctive principles of true Americanism will stay in place through the public
education system” (Ellis, 2011). Moreover, although Dallas is 78 percent Christian, The
Religious Landscape Study, produced by Pew Research Center, reports that non-Christian faiths
comprise 4 percent of the population, and the remaining 18 percent is unaffiliated with a religion
(Corral, n.d.).
Students’ beliefs that may fall in the 22 percent of minority non-Christian groups also do
not align with the minister that authored The Pledge of Allegiance. To understand this, one must
understand the history of the pledge of allegiance to the flag poem. Bellamy originally penned
The Pledge of Allegiance for a celebration to commemorate the Four Hundredth anniversary of
Columbus discovering America. In the original version, “Under God” was not included;
however, the intent was not to separate church and state. Throughout the program, religion was
incorporated. Bellamy made mention of God in the opening proclamation, and he spoke of the
nation's “faith in the underlying principles of Americanism and God's destiny for the Republic.”
The audience joined together to sing “America—My Country 'Tis of Thee,” and the program
called for an “Acknowledgment of God” either through “Prayer or Scripture.” (Ellis, 2011).
Despite the demographic makeup of the students in Dallas ISD, which closely mirrors
that of Texas, with 73 percent of its students belonging to a minority group and 22 percent of its
population do not adhere to the Christian faith, opting out of patriotic practices and rituals,
namely the pledge of allegiance to the flag has led to severe consequences for students in Texas.
A black student in Texas was expelled in 2017 after refusing to stand for the pledge, and she was
LEP: PART 2 – MORAL AND LEGAL ISSUES 5
told by the school secretary, “This is not the NFL.” In her case against the school district, the
state asserted that parental permission is required to opt out of participating in the pledge. Oddly,
the Attorney General of Texas, Ken Paxton, filed a motion asking permission to intervene in the
case to "defend the constitutionality" of the Texas Education Code that requires all students to
pledge allegiance to the flag daily (Shackford, 2018).
Again in 2017, another black student in Texas was forced to write out the Pledge of
Allegiance after refusing to recite the words. The student chose not to recite the pledge because it
did not match her religious beliefs, and African Americans still experience injustices. The student
was subjected to the teacher’s tirade on assimilation to American culture and the lack of
patriotism; additionally, she was given an F on the assignment. The teacher was forced to settle
out of court for $90,000 for violating the student's First Amendment right (Dress, 2022).
Lastly, in 2010, two sets of parents challenged the Texas Pledge of Allegiance in federal
court. They claimed the words in the pledge, “one state under God,” violated the establishment
clause under the First Amendment. Although the federal appeals court upheld the inclusion of the
words, it has been challenged in other states that requiring classroom recitations of the National
Pledge does not adequately protect the rights of students (Walsh, 2010). As of today, the U.S.
Supreme Court has not ruled directly on whether the inclusion of “one nation under God” in the
national pledge violates the Establishment Clause. Nevertheless, the court will likely have to rule
on a case regarding this controversial topic in the near future.
Analyzes the Focal Groups
Removing required patriot rituals will reduce incidents of students being disciplined for
refusing to pledge allegiance to the flag, stand during the pledge, or participate in other school
patriotic activities. According to a 2014 report by the U.S. Department of Education’s Civil
LEP: PART 2 – MORAL AND LEGAL ISSUES 6
Rights Office, students of color face disproportionate disciplinary actions in U.S. public schools.
Additionally, students with disabilities account for almost 60 percent of students placed in
isolation for discipline infractions (Chen, 2023).
To enforce patriotic rituals, State laws can appear over-enforced when students from
marginalized groups exercise their First Amendment rights. The pledge of allegiance may
contradict what students of color might see and experience living in this country and what
students from various religious or non-religious groups may think about the words “Under God.”
LEP: PART 2 – MORAL AND LEGAL ISSUES 7
References
America Demografia. (2022). Religion in Texas [Data set]. https://uscanadainfo.com/religion-in-
texas/
Chen, G. (2023, March 10). Students of color disproportionately disciplined in schools. Public
School Review. https://www.publicschoolreview.com/blog/students-of-color-
disproportionately-disciplined-in-schools
Corral, L. (n.d.). Beliefs that bind: Religion's role in shaping Dallas communities. American
Institute of Architects Dallas. https://www.aiadallas.org/v/columns-detail/Beliefs-That-
Bind-Religion-s-Role-in-Shaping-Dallas Communities/107/#:~:text=Today%2C
%20Dallas%2C%20as%20a%20Bible,and%20unaffiliated%20(18%20percent)
Dallas ISD. (2022, June 29). Board Policy Online.
https://pol.tasb.org/PolicyOnline/PolicyDetails?key=361&code=FNA#legalTabContent
Dillard, C. (2019, May 28). Pledge laws: Controlling protest and patriotism in schools. Learning
for Justice Magazine. https://www.learningforjustice.org/magazine/pledge-laws-
controlling-protest-and-patriotism-in-schools
Dress, B. (2022, March 30). Texas high school student pressured to write Pledge of Allegiance
awarded $90K. The Hill. https://thehill.com/regulation/court-battles/600370-texas-high-
school-student-pressured-to-write-pledge-of-allegiance/
Elk Grove Unified School District v. Newdow. (n.d.). Oyez. Retrieved April 28, 2023, from
https://www.oyez.org/cases/2003/02-1624
Ellis, R. (2011, December 10). Under God: Frances Bellamy and the origins of the Pledge of
Allegiance. Oregon Humanities. https://www.oregonhumanities.org/rll/magazine/encore-
fall-winter-2011/under-god/.
LEP: PART 2 – MORAL AND LEGAL ISSUES 8
My Data Portal. (2023). Dallas ISD Enrollment Statistics [Data set].
https://mydata.dallasisd.org/SL/SD/ENROLLMENT/Enrollment.jsp
Shackford, S. (2018, December 28). Texas school acknowledges it cannot force students to stand
for the Pledge of Allegiance. Reason. https://reason.com/2018/12/28/texas-school-
acknowledges-it-cannot-forc/
U.S. Const. amend. I.
US Legal. (n.d.). Pledge of Allegiance. https://education.uslegal.com/school-prayer-
overviewand-pledge/pledge-of-allegiance/
Walsh, M. (2010, October 14). Texas Pledge of Allegiance in schools upheld. Education Week.
https://www.edweek.org/education/texas-pledge-of-allegiance-in-schools-upheld/2010/10
West Virginia State Board of Education v. Barnette. (n.d.). Oyez. Retrieved April 28, 2023, from
https://www.oyez.org/cases/1940-1955/319us62
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