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
MORAL
LEP: PART 3 – AND LEGAL ISSUES 1
Legal Entanglement Project Part 3
LEP: PART 3 – MORAL AND LEGAL ISSUES 2
Analyzes Case Law
The Texas Education Code states 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 flag and the pledge of allegiance to the state 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).
Requiring students to recite the pledge of allegiance to the United States and/or state flag,
although allowing for parents to opt their child out is in direct conflict with the Supreme Court’s
ruling in West Virginia State Board of Education vs. Barnette (1943), holding that such a
requirement violates a student’s First Amendment right to free speech and religion. Although the
Supreme Court made it clear in the case West Virginia State Board of Education vs. Barnette that
a student cannot be made to pledge allegiance to the flag or stand for the pledge and in Tinker v.
Des Moines the court ruled that students nor teachers “shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate.”, in 2017 a student was expelled after refusing
to stand for the pledge of allegiance to the flag. The state referenced the Texas Education Code
that states parental permission is required to opt out of participating in the pledge.
Dallas Independent School District’s legal policy to encourage students to express their
love of the country by reciting historical documents or singing official patriotic anthems that
contain religious references does fall within the guidelines of West Virginia State Board of
Education vs. Barnette (1943) because it specifically states that the district cannot compel a
student to participate in pledging allegiance to the flag (Dallas ISD, 2022).
LEP: PART 3 – MORAL AND LEGAL ISSUES 3
There are two case rulings that could possibly challenge Texas Education Code § 25.082
and Dallas ISD’s Board Policy on school-led patriotic rituals. The first case is Elk Grove Unified
School District vs. Newdow (2002). In this case, a parent charged that a teacher-led ritual
proclaiming that there is a God was a violation of the First Amendment establishment clause. In
this case, the Supreme Court never decided on rather or not 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 didn't show that they had been
treated differently because of their religion. What is very 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.
Lastly, 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
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
LEP: PART 3 – MORAL AND LEGAL ISSUES 4
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 was 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.
Analyzes Self as Spokesperson
Now more than ever, students need positive morals, values, and beliefs instilled in them.
However, the First Amendment cases outlined in this paper imply that the board’s policy on
pledging to the flag contradicts our students' right to freedom of speech and expression and could
possibly be challenged for violating the Entanglement Clause. Dallas ISD schools can still
encourage good citizenship without reciting the Pledge of Allegiance to the flag or singing
patriotic hymns. School administrators can create school missions and codes of conduct,
including values that align with good citizenship, ideologies that mirror patriotism, and Christian
values. These statements can be recited openly over the school intercom and school-sponsored
events without the implication of being religious or being challenged by those who may feel the
ideals don’t apply to their cultural or societal experience.
LEP: PART 3 – MORAL AND LEGAL ISSUES 5
References
American Law and Legal Information. (2023). Wisconsin v. Yoder.
https://law.jrank.org/pages/22905/Wisconsin-v-Yoder-Significance.html#ixzz80yzfBjhO
Elk Grove Unified School District v. Newdow. (n.d.). Oyez. Retrieved April 28, 2023, from
https://www.oyez.org/cases/2003/02-162
Schwinn, S. (2014, May 13). Massachusetts High Court Says Pledge Does Not Violate Equal
Protection. Law Professor Blogs Network.
https://lawprofessors.typepad.com/conlaw/2014/05/massachusetts-high-court-says-
pledge-does-not-violate-equal-protection.html
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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