Document Type

Article

Publication Title

University of Chicago Legal Forum

Abstract

In the 2003 Term, the Supreme Court of the United States agreed to consider whether the Constitution permits the recitation of the Pledge of Allegiance in the public schools. One would have thought this question was resolved long ago. Twice before, in 1940 and then in 1943, the Court took up related questions. This Article takes the renewed interest in the constitutionality of the Pledge as an opportunity to reexamine the role of public schools in instilling civic values and principles in children. Part I discusses the Supreme Court's prior jurisprudence with respect to the Pledge, and Part II reviews the particular case that has brought the Pledge back before the Court. Part III discusses the questions to which the Supreme Court granted certiorari and separates out the particular question of whether using the Pledge in a school setting is constitutional. Turning to the Pledge's effects on children, Part IV concludes that the lower court likely overstated the singular effects of the inclusion in the Pledge of the words "under God." Part V discusses the remaining, and more general, implications of the pressures on schoolchildren to recite the Pledge, particularly in light of the apparent fact that few students who recite the Pledge know that they are under no obligation to do so. Part VI considers recent cases that have required the Supreme Court to strike a balance between the interests of children and the interests of schools. Because the Court has shifted this balance away from the constitutional rights of children and toward the administrative powers of school officials, these cases imply that the Court, since its earlier Pledge cases, may have become less inclined to place limits on the authority of public school officials. Accordingly, Part VII proposes that, rather than banning the Pledge, schools could place the Pledge at the center of civics lessons on both the constitutional limits of state authority and the dangers of governmental control. This Article concludes that we can and should require public school officials to use the Pledge, conducted within constitutional limits, as an opportunity to teach children these fundamental lessons.

First Page

57

Volume

2004

Publication Date

2004

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