LEP: PART 5 – MORAL AND LEGAL ISSUES 1
Legal Entanglement Project Part 5
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 5 – MORAL AND LEGAL ISSUES 2
Analyzes Literature
The Texas Education Code states that the board of trustees of each school district and the
governing board of each open-enrollment charter school shall require students to recite the
pledge of allegiance to the United States and Texas flag. Additionally, schools shall require the
United States and Texas flags to be prominently displayed in every campus classroom where
students are present when the pledges are recited. A parent or guardian can opt their child out
from reciting the pledge of allegiance by providing the school with written notice. Texas
Education Code § 25.082, (2017). Dallas ISD local board policy aligns with the Texas Education
Code; it states that the district will encourage students to express their love of the country by
reciting historical documents or singing official patriotic anthems (Dallas ISD, 2022). Although
the district policy prohibits school officials from compelling a student to participate in pledging
allegiance to the flag, administrators can misinterpret this policy and inadvertently compel their
students to participate in patriotic rituals during morning announcements and other school
functions (Dallas ISD, 2022).
According to the ruling in West Virginia State Board of Education vs. Barnette (1943),
requiring students to recite the pledge of allegiance to the United States and state flag, although
allowing for parents to opt their child out, is in direct conflict with the Supreme Court's holding
that such a requirement violates a student's First Amendment right to free speech and religion.
This ruling was made clear in the West Virginia State Board of Education vs. Barnette case and
when the court ruled that students nor teachers “shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.” in the case, Tinker v. Des Moines. Nevertheless,
Texas students have received harsh punishments for refusing to pledge to the flag.
LEP: PART 5 – MORAL AND LEGAL ISSUES 3
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. The Elk Grove Unified School District vs. Newdow (2002) and Jane
Doe v. Acton-Boxborough Regional School District (2014) case rulings could possibly challenge
Texas Education Code § 25.082 and Dallas ISD’s Board Policy on school-led patriotic rituals.
In the Elk Grove Unified School District vs. Newdow (2002) case, a parent charged that a
teacher-led ritual proclaiming that there is a God violated the First Amendment establishment
clause. In this case, the Supreme Court never decided whether the First Amendment had been
violated. The court sided in favor of the school district because they found the parent did not
have legal standing to bring a suit as he was not the child's custodial parent. The judgment, in
this case, leaves the door open for more legal challenges on the same grounds.
In the Jane Doe v. Acton-Boxborough Regional School District (2014) case, a group of
atheist students claimed the words "under God" in the pledge of allegiance alienated them and
caused them to become outsiders at school due to their religion and argued it violated their equal
protection under the Fourteenth Amendment. The court concluded that “the Pledge was
voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even
with the words "under God"; and that in any event, the plaintiffs did not show that they had been
treated differently because of their religion. What is especially important to note here is that the
plaintiffs did not claim that the practice violated their right to freedom of religion under the First
Amendment (Schwinn, 2014). Additionally, this same claim could be made if the plaintiffs could
prove they are being alienated or treated differently.
Moreover, in the Supreme Court case Wisconsin v. Yoder (1972), the court used a three-
part test to decide if furthering the education of a group of Amish children would damage their
LEP: PART 5 – MORAL AND LEGAL ISSUES 4
religious beliefs. First, the court asked whether the religious beliefs of the students in question
were genuinely held. Next, the court asked whether state law did, in fact, gravely burden those
beliefs. Lastly, the court considered the balance of the state's interests against the free exercise
interests of the students in question. The court determined that to rule for the state, state interests
had to override religious interests and that there must be no other way for state interests to be met
other than to impose upon the students’ religious freedom. American Law and Legal Information
(2023). If this three-part test were used in the case of Elk Grove Unified School District vs.
Newdow, Jane Doe v. Acton-Boxborough Regional School District (2014), or in the 2017 case of
the student in Texas the rulings could very well have been in their favor.
In his article, Ellis (2011) argued that Bellamy intended to establish religion in the Pledge
of Allegiance. The pledge was recited for the first time at the 400th Christopher Columbus
anniversary celebration. Despite the words "Under God" not being written into the Pledge of
Allegiance in its first draft, Bellamy organized a program that included forms of prayer and
religious passage readings and songs. Additionally, the minister made a speech that day stating,
"America owed its greatness not only to God but also to the superiority of the Anglo-Saxon race"
(Ellis, 2011).
In 2017, two Texas students made national headlines when they were issued severe
consequences for their refusal to participate in the Pledge of Allegiance. Shakeford’s story
covered a Cypress-Fairbanks Independent School District student expelled from school for
refusing to stand for the pledge. The student’s school district required students to have written
permission from their parents to refuse to pledge to the flag. The student filed a lawsuit claiming
her expulsion was racially motivated and violated her First Amendment rights. Following, an
unprecedented move was made; Texas State Attorney General Ken Paxton got involved and cited
LEP: PART 5 – MORAL AND LEGAL ISSUES 5
with the school district (Shakeford, 2018). In 2019 the school district settled with the student. As
pointed out in the article, the Supreme Court case West Virginia State Board of Education v.
Barnette (1943) prohibits school boards from requiring students to recite or stand for the pledge;
her school board's policy blatantly violated that law.
In the Dress (2022) article, the other student in Klein ISD refused to write out the Pledge
of Allegiance as a punishment for refusing to recite it. The non-religious student claimed the
pledge goes against her religious beliefs and does not align with the experiences of African
Americans in this country. The student filed a lawsuit claiming her teacher violated her First
Amendment rights, citing West Virginia State Board of Education v. Barnette (1943), and was
awarded $90,000 (Dress, 2022).
Analyzes Internal Data
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
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. The remaining 18 percent is unaffiliated with a religion
(Corral, n.d.). The demographic makeup of the students in Dallas ISD closely mirrors that of
LEP: PART 5 – MORAL AND LEGAL ISSUES 6
Texas, with 73 percent of its students belonging to a minority group and 22 percent of its
population who do not adhere to the Christian faith and opt out of patriotic practices and rituals,
namely the pledge of allegiance to the flag.
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). Furth
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 (U.S. 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 of 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). 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.
However, the court will likely have to rule on a case regarding this controversial topic in the near
future.
Recommends Policies and Procedures
Religion and patriotism should be held to the same constitutional laws to ensure all
students are treated equally. Dallas ISD board policy should reflect this, and the patriotism policy
LEP: PART 5 – MORAL AND LEGAL ISSUES 7
should be amended. Ideals and rituals that could be challenged under the First Amendment’s
establishment clause should not be encouraged during the school day or at school-sanctioned
events. I suggest schools allow student-initiated and student-led patriotic rituals in spaces that do
not impede their fellow students' ideals, feelings, thoughts, and/or time.
This change will give the First Amendment rights to students who want to pledge
allegiance to the flag and, for others, the right to refrain from pledging to the flag without feeling
pressured by directives to stand. After speaking with parents, I am confident I can receive buy-in
for the change; if it is made clear to stakeholders, students will be encouraged to exercise their
right to initiate the Pledge of Allegiance with groups of like-minded peers. The newly
implemented student motto will be recited, modeled, and the school's culture will be one of good
citizenship.
LEP: PART 5 – MORAL AND LEGAL ISSUES 8
References
America Demografia. (2022). Religion in Texas [Data set]. https://uscanadainfo.com/religion-in-
texas/
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
Doe v. Acton-Boxborough Regional School District. The Becket Fund for Religious Liberty
(n.d.). Retrieved from https://www.becketlaw.org/case/doe-v-acton-boxborough-regional-
school-district/
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/.
Schwinn, S. (2014, May 13). Massachusetts High Court Says Pledge Does Not Violate Equal
Protection. Law Professor Blogs Network.
LEP: PART 5 – MORAL AND LEGAL ISSUES 9
https://lawprofessors.typepad.com/conlaw/2014/05/massachusetts-high-court-says-
pledge-does-not-violate-equal-protection.html
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/
Texas Education Code § 25.082 (2017),
https://texas.public.law/statutes/tex._educ._code_section_25.082
West Virginia State Board of Education v. Barnette. (n.d.). Oyez. Retrieved April 28, 2023, from
https://www.oyez.org/cases/1940-1955/319us62
Wisconsin v. Yoder. (n.d.). Oyez. Retrieved May 7, 2023, from
https://www.oyez.org/cases/1971/70-110
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